“SECTION III. DECISION OF THE COURT OF ARBITRATION 1073 New problems unarguably appeared after the Settlement executed by the parties on19 July 2005 . As the Court of Arbitration has already stated, these new problems are not covered by the Settlement and CAT is entitled to try and establish the causes thereof. 1074 CAT considers that the technology licensed by GTT suffered from a technical and economic fault. CAT also calls into question the total lack of preparation of the technology transferred in terms of models, risk studies, the choice of adhesives, certification of materials, the Mark III, and the incident of the step bearings and the heptane pollution. 1075 As regards the latter point — the lack of preparation of the technology transferred — the Court of Arbitration concludes that CAT has not provided the burden of proof that is incumbent upon it. 1076 The Court has reached the same conclusion with regard to the existence of a technical or economic fault. 1077 The burden of the proof of such a fault lies with CAT. As regards the existence of a design fault, CAT situates it at the level of the Rigid Triplex, the role recognised by GTT of the brown adhesive, poor assessment of the strength of the bonded joint and consequently the safety margin in terms of the resistance of the secondary barrier. 1078 The Court of Arbitration has previously concluded that CAT did not succeed in conclusively establishing that these faults existed. In addition, as the Court has already stated, the sole fact that a licensee encounters difficulties in the implementation of the invention is not sufficient to conclude the existence of a fault. It is only possible to consider a technology to be affected by a design fault when it can be established that it is technically unusable or extremely difficult to use. This is not the case here. Even if we were to accept CAT's argument, we would have to note that CAT acknowledges that it was able to implement the technology and finish construction of the vessels in accordance with this technology, after some technical modifications had been made to it. Consequently it is not possible to talk of a design fault. The problem is more one of respect by the licensor of its contractual obligations. 1079 The same situation arises with regard to the economic fault. CAT claims that the discovery after the Technical Solution was signed, of an alleged almost total absence of a safety margin, forced it to develop methods of operation that would allow it to obtain a sufficient safety margin with regard to the bonding carried out on board; and that the implementation of these methods led to the establishment of extremely costly procedures, which considerably exceeded the framework of normal industrialisation. CAT alleges that this economic fault is independent of any technical fault. According to CAT, CS1 technology suffers from an economic fault on the basis of which it is intrinsically inoperable from a financial point of view. 1080 The Court of Arbitration cannot accept CATs argument. As the Paris Appeal Court stated in its judgment of2 June 1988 , the existence of an economic fault supposes that the invention is inoperable except under laboratory conditions or at prices that would preclude access to the market, rendering the technology unusable. This is not the case here. Independently of the question of whether GTT met all its contractual obligations and whether on this basis the difficulties encountered by CAT in implementing the technology are imputable to the Claimant, the exhibits and witness statements seem to indicate that CAT underestimated its costs. The Court furthermore finds that CAT has not demonstrated the need for the investments that it made in order to allegedly rectify or improve the technology. In addition, GTT rightly refers to the report by Mr. Fraleu in which he emphasises that the bonding speeds of the secondary membrane were better than those allowed for by CAT, which would tend to indicate that if CAT made losses, the causes thereof should on the whole be sought in areas other than the technology and its implementation. 1081 The Court of Arbitration therefore concludes that CAT has not established the existence of a design fault or an economic fault in the technology transferred by GTT. The problem still remains, however, of establishing whether GTT met its contractual obligations. In this regard, CAT states that GTT failed to meet its obligations in terms of delivery, technical assistance, monitoring and supervision, co-operation and safety.”
“801 The Court of Arbitration is convinced by GTT's position. It holds that the arguments and reports submitted by CAT are not conclusive and do not call into question the conclusions reached by the Claimant and its experts. 802 CAT claims to have observed a cohesive break at 7.9 MPa in the 4500 tests carried out at its request [a reference to quality control tests carried out after the Technical Solution]. This statement runs counter to the tests carried out by GTT which establish that the cohesive bonds have a resistance in excess of 10 MPa. Furthermore, CAT does not give details of the tests in question. In any case it would be difficult to base it on a single bond, and likewise there is nothing that makes it possible to establish that the bond in question was really cohesive. 803 In addition, CAT claims that the stress exerted when the M32 tanks were refrigerated was around 10 MPa. It bases this statement on the fact that the bonds that resisted refrigeration had a resistance of more than 8 or 10 MPa, which would confirm the result of the mathematical modelling carried out by CETIM. 804 As is precisely demonstrated by GTT, CAT's argument is not definite or conclusive. 805 CAT's argument is based on the report by Mr. Jollivet. The expert's reasoning is based on the results of tests in relation to which CAT has not passed on details. GTT, however, emphasises quite rightly that his statement is contradicted by the diagram provided by Mr Gomart in his report (exhibit C181, p.52), which highlights that breaks have been noted in bonds surviving stresses of between 0.7 to 1.4 MPa — a discrepancy which Mr. Jollivet has not managed to explain. 806 CAT bases its case, therefore, on calculations, namely the numerical model, interpreting the results of experimental tests which the latter and the CETIM have carried out. However, details of the numerical model have not been passed on by CAT. Exhibit G211 to which the Claimant refers contents the alleged results of said numerical model but not the elements that have served as the basis for this calculation, as has been confirmed by GTT's expert, Mr. Karim Chapot. 807 The Court of Arbitration has also reached the conclusion that it is difficult to give much weight to CETIM's conclusions in the light of the criticisms and contradictory conclusions and statements from GTT's experts. The latter have all confirmed that the Tsai Wu criterion was a totally unsuitable method, which could explain CETIM's so-called "absurd" results. The latter effectively claims that GTT would have miscalculated by a factor of 9 as to the stress being exerted on the secondary barrier. GTT quite rightly emphasises that the Technical Solution was drawn up jointly by CAT and GTT under the supervision of Bureau Veritas, who, following the problems arising in relation to the M32's secondary barrier, paid more attention to the repair options put forward by the parties. GTT also emphasises that it is astonishing that a mistake of such proportions could have escaped the notice of CETIM, EADS, GDF and numerous other experts appointed to study the resistance of the secondary barrier. In addition, if the stress suffered by the secondary barrier on board was indeed of the order of 12 to 13 MPa, as GTT claims, the Triplex, which has a resistance of 3.5 MPa would not be able to support it. It would follow that that the secondary membrane of the 50 Mark III vessels in circulation, as well as the three vessels that are the object of these proceedings, would be liable to break at any moment, which appears absurd. 808 GTT has in addition submitted results of tests on sandwich samples that confirm its arguments, and which have been validated by its experts and Bureau Veritas. In order to counter the conclusions of these tests, CAT states that sandwich samples are insufficient as they do not take into account all the stresses that exist on board the vessel: and that in addition, the number of tests carried out by GTT would be insufficient to vest these tests with any statistical evidence of the representative nature of the stress on the secondary barrier. This argument is fundamentally contested by GTT who consider that the sandwich samples simulate perfectly the stresses found under real conditions, and that they were developed in partnership with Lloyd's Register of Shipping and at the time received the approval of CAT and Bureau Veritas, within the framework of the Technical Solution. The results of the tests established definitely that the resistance of the bonded joints vastly exceeded the stresses sustained on board. 809 CAT is responsible for the evidence that it has put forward. It is therefore up to CAT to convince the Court of Arbitration by conclusive evidence, that the resistance of the secondary barrier was not correctly calculated by GTT and that consequently its technology suffered from a fault. In view of the above, the Court of Arbitration deems that CAT has not provided the burden of proof incumbent upon it. It therefore concludes that it has not sufficiently established as a fact the existence of a design fault in GTT's technology in terms of the calculation of the resistance of the secondary barrier. The reports and witness statements produced by CAT have not convinced the Court of Arbitration of the reality of the alleged modifications that it would have made to the procedures in order to remedy what it considered a fundamental design fault.”
“The authorities show that the applicable principles are as follows. In accordance with the high threshold applicable tos. 68 Arbitration Act 1996 (Lesotho Highlands Development Authority v. Impregilo SpA[2006] 1 AC 221 at 235H, Lord Steyn), it is not enough in an application under s. 68(2)(g) to show that one party inadvertently misled the other, however carelessly (Cuflet Chartering v. Carousel Shipping Co Ltd[2001] 1 Lloyd's Rep 707 , Moore-Bick J, at [12]). It will normally be necessary to satisfy the court that some form of reprehensible or unconscionable conduct has contributed in a substantial way to the obtaining of the award. A challenge to an award cannot, therefore, be made on the grounds of an innocent failure to give proper disclosure (Profilati Italia SRL v. PaineWebber Inc [2001] 1 ArbLR 51, [2001] All ER (Comm) 1065, Moore-Bick J at [17] and [22]), or the innocent production of false evidence (Elektrim SA v. Vivendi Universal SA [2007] All ER (Comm) 365, Aikens J at [80]-[81]). Where, as in the present case, the allegation is fraud in the production of evidence, the onus is on the applicant to make good the allegation by cogent evidence (Cuflet at [12], Elektrim at [81]). The applicant must show that the new evidence relied upon to demonstrate the fraud was not available at the time of the arbitration and would have had an important influence on the result (Westacre Investments Inc v Jugoimport-SDPR Holding Co Ltd[1999] 2 Lloyd's Rep 65 at 76-77, Waller LJ, applied by Cooke J in Thyssen Canada Ltd v Mariana Maritime SA [2005] ArbLR 62 at [60]-[66] and in DDT Trucks of North America Ltd v DDT Holdings Ltd[2007] 2 Lloyd's Rep 213 at [22][23]). The latter point (important influence on the result) takes effect within the statutory requirement that the irregularity has caused or will cause substantial injustice to the applicant (Thyssen at [65]).”
“But an award will only be "obtained by fraud" if the party which has deliberately concealed the document has, as a consequence of that concealment, obtained an award in its favour. The party relying on section 68(2)(g) must therefore also prove a causative link between the deliberate concealment of the document and the decision in the award in favour of the other, successful, party.”
“(i) the length of the delay; (ii) whether, in permitting the time limit to expire and the subsequent delay to occur, the party was acting reasonably in all the circumstances; (iii) whether the respondent to the application or the arbitrator caused or contributed to the delay; (iv) whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed; (v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration or the costs incurred in respect of the determination of the application by the court might now have; (vi) the strength of the application; (vii) whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined.”
"What shocked the managers at GTT was the adhesive component of the break. There was a huge internal debate. For the GTT managers, at the time, a good break was of the cohesive type and not adhesive. Precisely, the breaks identified on the M32 were mainly of the adhesive type, which was not considered satisfactory. Whereas the breaks on the B0 test pieces had been made up from materials from CAT, with the exception of the soft Triplex which came from the laboratory stocks, were mainly adhesive."
“we were pushed for time, which meant that these preliminary tests could not let us answer the questions which were being put by the programme, and we had an excessive number of test requests in parallel, so very little time to devote to each.”
“Well, by name, obviously no. Certainly, it must have been my boss, who was aware of these preliminary tests, also Mr De Kermadec, and you must realise that all these samples and all those concerning Saint Nazaire engendered a lot of discussion, a lot of internal debate and I wasn't personally invited to all these meetings, the proof being that I discovered the meeting with Gaz de France between Gaz de France and Mr Berthon, only last week.”
“Q. The reason it caused a shock was that this result, at the very least, called for further investigation, and gave, as it were, the wrong answer from GTT's point of view? A. The GTT management was not shocked. Q. They were perfectly calm, were they? A. But on the other hand, we were riding under pressure relating to important timing. So it was vital to supply results quickly. When we saw that the ruptures were adhesive, the compliances for our design requirements not being satisfied, we were therefore not able to show what the safety factor was in terms of our technology, and this delayed by one month the signing off of the Technical Solution, and that's what caused the management to have a headache. Q. Yes, it was the wrong answer. It gave an adhesive rupture, which as you told the arbitrators, is completely unacceptable in the industry? A. Absolutely. I would confirm that”
“Q. I'll come back to read you a few more points in a moment, but he talks about the shock of the managers at GTT, and a huge internal debate. Are you disputing that? A. I have no recollection at all of a huge internal debate and the shock after the result of the B0 test. I just have some recollection that the question was raised at that time in GTT to know whether we should ask cohesivity as something mandatory for the Technical Solution, but I have no recollection at all of a huge debate and a shock that might have occurred after the result of the test -- of the so-called test B0. Q. I will have to ask him about what he means by this, but it would be very surprising, I suggest to you, if he was, as the head of the laboratory, wrong about there having been shock and a huge internal debate? A. What would be interesting is to know who was participating to this so-called shock. Q. I'm suggesting that, in all probability, you were one of those who did participate in that internal debate? A. I guess so. Q. Let's be quite clear of the answer "I guess so", are you saying you guess that that is probably true? A. Yes, my guess is, probably, one participating in that debate. Q. Do you guess that that debate was probably on the telephone? A. I guess that it was a meeting debate, but a face-to-face debate.”
"I was asked not to mention these test pieces or the results. It wasn't Mr Chapot who asked me this. The laboratory was under the orders of LDI (Internal Distribution list) M32-N32, which I suppose became the LDI Legal with a more restrictive headcount. At the start, the LDI grouped together a certain number of scientists at GTT who were working on finding a technical solution with CAT. Later, when the dispute became a more traditional one, the LDI became LDI Legal which didn't include me. I'm certain I received this instruction. As far as I can remember, it could only have come from my director, Mr Michalski and/or Mr Dhellemmes who was in charge of LDI. The instruction did not refer the destruction but to the fact of not talking to anyone at all about it. Internally, the results were not destroyed."
“I will reply to you as I did to the examining magistrate. I have no clear idea of this, of the name. I -- the only thing was that I took my orders from Pierre Michalski, who was my boss, or from Jacques Dhellemmes, who was the CEO of the company, which is why I am sure that this instruction could not have come from Karim Chapot. I only answered to my bosses. Q. Your impression was that this instruction came from the top? A. From my top – Q. Mr Dhellemmes -- (overspeaking). A. But not from the top of the company. Q. But Mr Dhellemmes is the top. A. Yes, but I was more into taking my instructions and my orders from my boss. Q. Mr Michalski? A. Mr Michalski. Q. Who was himself very senior? A. Well, yes. He was director of R&D.”
“Q. But if we compare the results of programme 2397, which were the tests done on panels that had been glued in accordance with the Technical Solution, compare that with the results of B1 to B5, the results are almost identical, aren't they? A. Yes. Q. There's no material difference? A. No, not in strength. Q. There's certainly not an improvement of 24 per cent in strength or anything like it? A. No, but you – Q. That phenomenon is not repeated? A. No, you wouldn't obviously expect it to be repeated. Q. Why not? A. A simple joint like that shear doesn't automatically translate into what you would expect in a more complicated joint. Within the 2320 and 2397, there's quite a lot of evidence of the foam failing. So even if you can get that 24 per cent increase in joint strength, you may be limited by the fact your foam is not any stronger. Q. The foam fails? A. Yes. So what you're doing is improving a bond that's already stronger than it needs to be, is one explanation. There are quite a lot of failures in the foams in these tests.”
“However, we are continuing the programme of tests to cover all the cases imagined by your consultant (CETIM) even if the first tests corresponded to the cases considered by them as the most critical ones”
“Eprouvettes [Samples] CS1 Essai de Traction [Traction Test].”
“The programme of validation by tests on test specimens and its results are acceptable for classification.”
“Here is a recapitulation of the tests on sandwich samples performed in the month of June 2005. The panel, the TBP and the epoxy glue (known as green and brown) XB 5032A/B and XB 5032A/5319 were provided by CAT. Only the BSS was provided by GTT (HUTCHINSON). Bonding performed in GTT's laboratory. Out of the 5 samples tested, 1 was tested at ambient temperature, another dipped in a nitrogen bath then tested at ambient temperature and three at −110° in a cryogenic chamber. The average rupture value of the last three samples is about 16KNwith rupture of adhesive type on one pad side and of mixed type (superficial cohesive and adhesive) on the other. The sandwich samples made by GTT from our own stocks (and tested at the end of June) gave rupture values over 20 KN(with the same configuration as those tested at the beginning of June) with ruptures of cohesive type. Today we asked CAT to prepare a corresponding number of sandwich samples capable of qualifying the scarification procedure and also capable of validating the "technical solution". These samples will be made from their stock. I apologise to those who knew about this subject, but it seemed to me to be good to clarify the situation.”
“Well, the work resumed in August, and there were several hundred panels which were impossible to glue, and it was quite disconcerting -- or it was totally disconcerting for those who had created the Technical Solution, because we had trusted -- we had confidence in the 400 inspection samples, so as I repeat, it was very disconcerting for us. MR HIRST: This was to do with the Technical Solution? A. Yes, because the boat is always king, and with the Technical Solution, we thought that we had a reliable system so as to be able to repair the vessel, and nothing bonded on the second vessel when the work resumed. Q. Using the Technical Solution? A. Yes. So we thought there was a new poison in the glue, in the bonding. The crisis lasted months before we found the poison, and at the time, I think all of the management -- well, us, that is five or six of us -- had to solve this crisis. Q. I'm not going into that, unless my Lord wants me to. MR JUSTICE FLAUX: Was this manifestation on N32 of adhesive ruptures? A. Well, it was even worse than that (overspeaking). You could have undone the strips with your fingers.”
“Q. So you didn't take any particular notice -- I don't mean this pejoratively -- or steps in relation to this mail? A. No. The e-mail came in, I scanned it quickly to see what it was talking about. I may have opened up the Powerpoint attached. I didn't go into much detail and, basically, either I archived it or I deleted it, more so (inaudible) for Mr Christophe De Kermadec to treat [i.e. it was more for M De Kermadec as his boss to deal with].”
“Yes, but what I'm saying is -- in my report I'm not saying that the CS1 samples are part of CS1 panels. I say they are representative. Insofar as the geometric measurements and lengths are correct, I'm happy. I'm sorry, were I to draw a caricature of all of this, then I'm not bothered whether a sample has been cut from a panel which has already been glued, and which has been cut in order to establish the correct geometry of the piece, be it cut or recut, or if the material has firstly been cut and then bonded in order to determine the geometry. 213. Now, what I feel is important here is the geometry. That I take a panel CS1 or a panel Mark III, it doesn't matter, but if I cut it at a CS1 geometry level, that will be representative of a CS1 system.”
“Q. You would not be complying with this test requirement, would you, if you didn't use a CS1 panel and cut it into four according to the longitudinal and transverse axes set out there? A. Well, you wouldn't strictly be applying the test requirement but there's no scientific reason why you cannot fulfil the objectives of the test by making samples another way. All you need is a sample with the right materials with the represented geometry. The actual way you get to that geometry is, I think as Mr Malvos said, fairly irrelevant.”
“static tests: detailed results for the first sandwich tests specific to the CS1 system carried out on panels supplied by CAT at the beginning of June 2005”
“the joint GTT and GDF study report carried out on the bondings of the secondary barrier in May 2005 and mentioned in the email from GTT to GDF a copy of which was sent to CAT on16 May 2005 ”
“The knowledge of the detailed assembly conditions for the sandwich test pieces, test conditions and results of the first sandwich tests carried out in June 2005-at the GTT laboratoryusing panels from the M32 supplied by CAT- should be used to ensure that GTT correctly adopted, for its first series of tests, similar conditions to those encountered on board the vessels (rather than optimum laboratory conditions intended to ‘pass’ its tests with the sole object of certifying the design of the CS1). These documents are required to ascertain the relevance of GTT’s statements according to which ‘there is therefore no design error in the CSI” [a quote from the Dhellemmes letter of29 June 2005 ]. … GTT’s failure in its role as licensor and designer of the new ‘CS1’ technology. Hidden fault and bad faith on the part of GTT in the preparation and adoption of the Technical Solution. [The summary then quoted more extensively from the Dhellemmes letter]” [The summary then quoted more extensively from the Dhellemmes letter]”
“The static tests requested have already been submitted in Annex No 5 of Expert Report no. 2 (Series of Tests 2320).”
“In the context of Mark III and CS1, the request is granted so far as the risk analyses [i.e. the AMDEC studies] are concerned connected with the bonding assembly of the secondary barrier and with moving from flexible triplex to rigid triplex.”
“1.3 Description of the programmes conducted on sandwich samples 88. Many programmes have been conducted with the following aim: - to validate the Technical Solution with the materials used by the Shipyard and the shipyard procedure (DE 2320 and 2397); - to justify behaviour under fatigue in the case of fabrication "drift" (DE2380); - to invalidate CETIM's thesis (Tests without pads — DE 2320). 2. Programme validating the Technical Solution 89. Test Report No. 2320 14 assesses various configurations encountered on board. When samples are pulled at low temperature, stress is produced which increases with movement. Marking elongation of the sample on the horizontal axis and tension stress on the vertical axis, the following result is obtained, perfectly reproducibly, on 17 samples: 13 1 7.K.N≈100 kg, therefore 20.12 T/m equivalent to 20.12 KN on the 50 mm bonded joint of the sandwich sample. 14 See Annexe No. 5: "Results of Test Programme 2320".”
“I asked you and suggested to you, that it's clear that request 37 covered the B0 tests. It might have covered other tests as well, but it covered the B0 tests, and you knew that. A. Well, I think in 2007 I'd completely forgotten the e-mail of Julien Berthon, but I remember very well the expert report which I've just described. Q. We'll come to that in a moment, but if you could just answer my question. A. But you're asking whether the unsuccessful tests had to be disclosed. Q. I'm asking you whether you accept that this request clearly covered the B0 tests, as you appreciated at the time, that is in September 2007. A. I thought at the time that we were replying with the whole of the report of the 2320 trials. I'm very surprised to see this request because CAT had all the results, including those of B02. They'd had them from between 1st July and 12th August, so they were asking them for a second time. Q. You're saying that CAT had been provided with the B0 test results? A. Only B0-2. They were the only ones which were useable.”
“Q. …Were the B0 test results sandwich tests specific to CS1 carried out with panels supplied by CAT at the beginning of June 2005? A. If I can just reiterate, all I can do is reiterate my reply. I thought that, certainly because of the information I had, that the B1-B5 tests replied to the question, given the information I had at the time, and that the trial could certainly be used -- the tests could certainly be used. Q. Are you telling my Lord that you were told, at the time, in September 2007 that the B1-B5 tests were tests carried out with panels supplied by CAT? A. This was confirmed in, primo, by the expert report number 2 from the arbitration – Q. You're referring to Mr Chapot's report? A. -- as well as research conducted by Sandrine at the time of the exchange of documents. Q. Are you referring to Mr Chapot's report? A. Yes. MR JUSTICE FLAUX: He's referring to the passage which talks about the tests carried out on samples provided by the yards -- by the yard, and the test being 2320 and 2397, which you asked Monsieur Chapot about, which again is a very unusual phrasing in the document. But I think, do I understand you correctly, you thought that the B1-B5 tests had been carried out on CAT panels; is that right? A. (In English): Absolutely. MR HIRST: Who told you that? He said "absolutely". MR JUSTICE FLAUX: He said "absolutely" in to answer my question, but Mr Hirst's question was who told you, or was it something that you assumed? A. I read the report of Karim Chapot in detail. I think it dated from July, so it was still very fresh in my mind, and Sandrine Gegauff reached the same conclusion in researching the documents, so I did not attempt -- so I did not try anything else because the issues seemed clear to me at that point. MR HIRST: So when you read Mr Chapot's report, you were led to believe, were you, that the B1-B5 tests had been performed on CS1 panels supplied by CAT? A. That's what I understood from Karim Chapot's report, but there's something surprising, or there was something which doesn't appear in the report the minutes of the trial 2320. Nowhere is it shown where the panels had come from. There's virtually no information as to the manner in which they were glued. Q. But you believed, having read Monsieur Chapot's report, that the B1-B5 tests had been performed on CS1 panels provided by CAT? A. Yes. It's a highly succinct sentence, and I would say that these tests were carried out using materials from the shipyard, and my memory, in accordance with shipyard procedures. Q. You're referring to Mr Chapot's report? Q. Are you referring to Mr Chapot's report? 263. MR JUSTICE FLAUX: He's confirmed I think, that reading the words in paragraph 88, the first bullet point, beginning "Valider la Solution Technique", is what led you to believe that the 2320 tests were carried out on materials supplied by the yard and in accordance with the procedure adopted by the yard. A. Yes, and since Sandrine Gegauff came to the same 264. conclusion, I admit that I didn't delve in any further.”
“I wasn't involved at all. I know that on the -- in the Excel spreadsheet there was a [column for] me, but I put every trust in Sabine and Sandrine. The spreadsheet was gigantic, and I, given the workload I had, I was incapable of taking on this work. Q. You're right to bear in mind the Sabine and Sandrine schedule, but just taking a step back from that, more generally, the dealing of the disclosure requests was something that Monsieur Le Tallec was essentially in charge of, not you; is that right? A. What I can tell you is that I was in no way involved with that part. A priori, Jean Le Tallec was the senior management who was in charge.”
“Well, you have to be very watchful when you read this. When I say "materials used by the shipyard", and I’m talking about a validation of design, I have to have sound properties, and therefore, it was necessary to have the same type of foam, in the event Hankuk, and the same type of rigid Triplex, and also the rigidity of flexible Triplex, which were, in fact, representative of the situation. So what you have to understand is that when you look at the design, you're looking at the stresses and the stresses depend upon the type of materials used, in terms of rigidity. Q. Can we look at the next paragraph? A. Just let me finish. In my document, I wanted to stipulate that it was good materials which were used for the design.”
“Replies to the alleged design defect.”
“Tests carried out on samples made by CAT during the development of the Technical Solution, which are therefore representative.”
“This makes it possible to illustrate the stresses which operate on the level of the planes of bonding. As you have understood, the containment mass is attached to the hull of the ship. The hull will be deformed under the effect of the swell and, as it deforms, it will generate shearing stresses on the level of the assemblies. This is the first of the stresses.”
“In this case, when the bond is made correctly, there should be cohesive rupture. If the bond is badly made, if you wait too long, you get rupture of adhesive type which does not comply with our requirements.”
“What do you get when you pull on this sample? We shall have a graph. You are going to have movement. You are going to pull on the assembly and you are then going to extract movement and the associated stress. The more you pull, the more stress it takes to deform the assembly. This is easy to understand. It is like some sort of big elastic on which you are going to pull. So we are going to extract a graph and this is the graph which is given here. On the vertical axis you will have stress. This is the stress which passes on the level of the bond. On the horizontal axes you will have movement. These are the movements which are needed to deform your sample. And you will have a point here which corresponds to the effect of subjection to cold. When you put your sample in your enclosure and you block the whole assembly, there will be stresses which are due to subjection to cold. It is this point. Then you deform the whole assembly and you break it. You break at about 20 tonnes per metre. The levels of stresses which exist in normal conditions are about 7.5 tonnes per metre. Normal conditions are when the liquid is on the primary barrier. You are here, therefore on the red curve. It is the vertical red arrow which you see here on the left. This is the area of use. The green arrow, this is the area which you never use. The point here which is on the intersection between the discontinuous line and then the red arrow, this point here, it is what the ship will experience in the worst conditions. You must imagine that a wave which occurs every twenty years will come and cause very great deformation of your ship. You will find yourself there, on this point, on this level. It is the worst case. All that zone will never be used (He shows the green arrow). This is called the safety margin of the technology. You should know that part of these samples were made, some of them, from samples made by Chantiers de l'Atlantique in condition. In other words, Chantiers de l'Atlantique made their panels, and we then made the sample from the panels made by Chantiers. Therefore you are able to reproduce in reality all the imperfections related to their making. One point about this sample we keep talking about. Samples are made, but they must be representative. You have seen that it has a geometry which is very close to what there was on board the ship. You should know that this sample, which was designed in the 90s, has received the approval of all the Classification Societies: Lloyd's Register, Det Norske Veritas, Bureau Veritas, American Bureau of Shipping. It is now considered a reference, a representative sample. All the Classification Societies agree on this subject.”
“A typical test result. In the case of a good bond, when there is cohesive rupture, it can be seen well here on the level of the figure at the top on the right, there is indeed a cohesive rupture, there is indeed the presence of green colouring on the rigid Triplex, well, cracks can be seen in the foam. On all our samples, without exception, when these samples we keep talking about are pulled and there is a good bond, there is cracking in the foam. And it turns out that on board the ship cracking of this type was never seen when there was the incident. It has never been noted. This demonstrates that the ruptures of the M32 are due to poor execution.”
“What CAT does not dispute” and had two sets of photographs of what was described as “good bonding” and “bad bonding”
“Another point which is essential, in my opinion, about the notion of adhesiveness and cohesiveness. You have on the figure at the bottom, on the right, it is Exhibit C181 produced by Chantiers de l'Atlantique, a case in which the Triplex is particularly white. There it says "adhesive rupture". The rigid Triplex is of light grey colour. The flexible Triplex is of green colour. This is, precisely, an illustration of a bad bond, which GTT does not accept in terms of quality. What GTT requires is cohesive rupture. Yet it turns out that on board the ship all the ruptures without exception are ruptures of adhesive type. All the ruptures without exception are non-compliant with our requirements.”
“What CAT does not dispute” and had three bullet points: that the ruptures observed on board M32 were adhesive, that GTT requires cohesive ruptures and that the modes of rupture on board are noncompliant with GTT’s requirements. At the bottom of the page again red in capital letters, it stated: “This is proof that it is not a design problem, but rather a problem of fabrication.”
"Essais effectues a partir d'echantillons realises". 298. MR MACLEAN: Look at those words. You've agreed that those are your words in your presentation and I suggest to you that they marry up very well with what you told the arbitrators at C5/147, and there are only two slight problems. One is the words aren't true, and secondly, the only tests that were done on samples supplied by CAT were the B0 series, about which you're very careful to say nothing. 299. A. Okay, so again, I totally disagree. It was for a typical result, and when I wrote "
“Q. It's correct, isn't it, that the only tests which match the description in the box at the bottom of K11/88 is the B0 test series? A. Not at all. Q. Those were the only sandwich samples carried out, whether during the course of the Technical Solution --or certainly up to the Technical Solution, the only sandwich tests carried out on samples made by CAT, or on samples supplied by CAT? That's what everybody else has said so far. MR JUSTICE FLAUX: Before the Technical Solution? MR MACLEAN: Before the Technical Solution. MR JUSTICE FLAUX: Because this particular – A. So what we call -- just for me to understand the question, what we call the Technical Solution is -- because the Technical Solution lasts in 2005 and beginning of 2006, we worked on the Technical Solution and, even in the writing in the document of the Technical Solution, it was said that we had further study to be performed and specific tests to be done and sandwich samples to be done. So what I called the Technical Solution is all the testing performed not only at the signature of the Technical Solution but all the tests that were due to be performed. MR JUSTICE FLAUX: No, what counsel is asking you about, not the tests -- because Monsieur Devillechaise told me that there were other sandwich tests after the Technical Solution was signed on sandwich samples where the actual panels -- sorry, the sandwich was provided by CAT, pre-prepared, before -- and, sorry -- and all that GTT did was to cut it. Right? A. Yes. MR JUSTICE FLAUX: What counsel is asking you about are sandwich tests before the Technical Solution was signed, which is what this graph is talking about, because it talks about "pour aboutir à", in another words, to arrive at the Technical Solution. So this is something that was done before the Technical Solution was signed. A. Okay, so when I wrote the document -- just for me to explain -- when I wrote the document, what I called the Technical Solution was not the work performed when it was signed but all the work that were to be performed. So we had a lot of work performed during 2005 and 2006, so it is -- the definition of the Technical Solution is when it was signed, the definition then. Indeed, we had only B0 and B0 one performed, but when I wrote that, it was what we call -- what I considered a Technical Solution is all the work performed during the Technical Solution, and all the work performed during the Technical Solution was not only B0 and the first B1 performed, but all the testing that was done to demonstrate that the Technical Solution was fit for purpose, that the Technical Solution provides enough confidence for the vessel to be repaired.”
“it has been evidenced that a significant number of tests had been failed by GTT, even though they were performed in ideal laboratory conditions.”
“It is only possible to consider a technology to be affected by a design fault when it can be established that it is technically unusable or extremely difficult to use. This is not the case here. Even if we were to accept CAT's argument, we would have to note that CAT acknowledges that it was able to implement the technology and finish construction of the vessels in accordance with this technology, after some technical modifications had been made to it. Consequently it is not possible to talk of a design fault.” design fault.”
“It is not relevant that a foreign court system applies different rules of evidence: so, for instance, it is irrelevant that the foreign court has admitted evidence which the English court would have excluded or vice versa (see the cases cited in Dicey, Morris and Collins at para. 14-152). Nor does it matter that the foreign court has a different procedure from the English courts unless this deprives the judicial process of the quality of substantial justice. Thus in Brossiére v Brockner (1899) 6 T.L.R. 85 at 86 Cave J dismissed a ‘startling’ attempt to impugn the judgment of a French Court of Appeal on that basis: “the only ground for such an allegation [that the proceedings were contrary to natural justice] appears to be that the practice differs from our practice. It is, however, hardly necessary to say that the practice of our Court is not the only or even necessarily the best method of arriving at justice…””
“I have issued this certificate in case of need. One technical sheet is missing to date (taking into account our comments on 27/05/03) which should be part of the reference done for each product. I have had Bostik on the telephone this evening and they confirm that they recommend exclusive use of 18018 therefore the DE which comes off is concentrated on this type of bonding, the procedures recommended by B in their fax dated 08/07/03 not having, apparently, ever been tested by GTT.”
“On the one hand, you had R&D engineers, who felt that this glue, following three years of study, was fit for purpose, and Christine Cornelius, who only had this – who was only responsible for this case file for a few months, who said that trial still had to be carried out.”
“After telephone discussion with Jacques DHELLEMMES on 21/07/03, he requests that you sign the attached certificate as some might find it curious that the management of GTT issues a technical certificate. However, Jacques DHELLEMMES and I take full responsibility for this approval of BOSTIK glues for GTT.”
“Complete approval files for BOSTIK XPU 18018 A/B and XPU 18411 A/B adhesives, including in particular GTT’s internal document 681 and internal document 682”
“I did state that we did not find the 681, nor the 682, and just like before, I referred to the team and we sent this information to Maitre Jaeger – the lawyer, because, in fact, the first documents were not able to be found within the GTT documentation.”
“A. All the participants had read the e-mail, and I think we were all convinced that this draft documents 681 could, in no case, be disclosed in its state, because as Peter Moore explains, we can see very quickly that this document is a fusion of two documents, which do not mention at all the same subject. Q. Why not communicate that to CAT? A. Because – and I repeat – we had decided to disclose – communicate, at the time, valid data. It’s for this reason that I submitted to the team and to the lawyers all the trial reports which serve as a basis for approval. Q. I suggest to you, Miss Carzon, that you and the rest of Mr Le Tallec’s team, were all party to giving a dishonest response to CAT’s request? ... A. The reply is in no way dishonest, but perhaps inappropriate or inaccurate. Perhaps we should have written at the time that an unusable draft of the 681 had been found, and that we were sending all the trial reports giving information needed by CAT, but in no case did we want to conceal this unusable draft.”
“I think what they decided to do was sensible, which was to provide, instead, the test reports which that draft purported to summarise, and, to me, it makes a lot of sense to say – to decide to produce the documents which contain the real data, instead of a draft which was supposed to summarise those documents, but was unfinished. 381. ..it may be considered that this is not document 681, as it was quoted in the approval certificate, which was supposed to be a final document. So they were looking for a final document and they found a sort of working document, which was no the document they were looking for, so they said, I think, honestly, 382. “This document cannot be found””
“I believe that Christine Cornelius deceived us, misled us. She should at least have told us that document [681] should be a summary of all the tests carried out, but which had not yet been written down.”
“GTT told the tribunal that those documents were confidential because this study belonged to Gaz de France, and they were not authorised to disclose that study to the tribunal. There was a debate before the tribunal about that, and that’s my understanding of why GTT did not produce the documents.”
“the information itself, as it was reflected in the Powerpoint presentation, is scientific data that does not particularly belong to GDF, but the report belonged to GDF.”
“When we have an offshore platform, what we do is from the very start of the design, we conduct an AMDEC study as to risks which the operating platform may present and the way in which to overcome these risks. Methane tankers obey completely different rules. They have to comply with what is known as the International Gas Code, which only talks of determinate rules where there is no obligatory risk analysis, which is what Gaz de France did, because we've used AMDEC for highly varied risks, to try to see what risks, and due to poor gluing -- poor application of gluing during construction -- so this has got nothing to do with it.”
“At the end of these two studies, GDF concluded that GTT's technology was suitable for industrial application of bonding of the secondary barrier, and that this secondary barrier provided sufficient strength to withstand the stress on board with a comfortable safety margin. The three vessels were delivered by CAT between December 2006 and February 2007. They successfully passed the gas trials without leaks appearing in the secondary membrane. They have been in operation for three years. No incident has been noticed on the secondary barriers.”