“The vessel must also satisfy the United Kingdom Maritime and Coastguard Agency (MCA) requirements for a class VII Cargo Vessel and the IMO Code Safety for Special Purpose Ships… In addition the vessel must satisfy the following regulations: IMO – Conventions … - SOLAS International Convention for the Safety of Life at Sea, 2004 … IMO – Codes/Resolutions - SPS Special Purpose Ship Code … - Intact Stability (IS) Intact Stability for All Types of Ships Covered by IMO Instruments, Res. A.749(18), as amended by Res. MSC.75(69) … Miscellaneous … - MCA requirements for crew accommodation – SI 1997 No. 1508”
“2 … a special purpose ship is a ship of not less than 500 gross tonnage which carries more than 12 special personnel, ie. persons which are specially needed for the particular operational duties of the ship and are in addition to those persons required for the normal navigation, engineering and maintenance of the ship or engaged to provide services for the persons carried on board 3 Because special personnel are expected to be able bodied with a fair knowledge of the layout of the ship and have received some training in safety procedures and the handling of the ship’s safety equipment, the special purpose ships on which they are carried need not be considered or treated as passenger ships.”
“The selection of ADYARD to build the 2 off Marine Services Multi-Support Vessels (MSVs) was taken late in the period between announcement of preferred bidder to contract award17th December 2007 . The vessels first started out as 56M Anchor Handlers/Platform Support Vessels to a Henderson design with initial negotiations for the placement of the build contract with ITALTHAI, a Thai-based shipbuilding company a short distance from Thailand’s capital Bangkok. As negotiations progressed a combination of rising prices and FMPS budgetary constraints meant that an alternative design and shipbuilder needed to be sourced. Several alternative shipbuilders were approached including FBM Philippines, who expressed interest but would have had to make infrastructure changes to accommodate. Their main business was fast aluminium catamaran. Shipbuilding activity was at its peak. It was during this period that DAMEN, Serco Limited and MOD entered into the tripartite [sic] to secure build slots with DAMEN shipyards. The Henderson 56M design was revisited and the sizes reduced to 50M at the same time ADYARD were presented by Henderson’s as a possible solution to supply the 2 off MSVs. Mr Iain Macleod (FMPS Consulting Naval Architect) made a site visit and gave favourable reports about the capability of the shipyard, mainly based on its oil & gas work in-progress, its main stay of business, and a small ship repair capability. The senior management of ADYARD stated that they had successfully undertaken several shipbuilding projects before, albeit small landing craft, and wished to start up a shipbuilding capability to service worldwide demand.””
“...As discussed, for clarity, I have recorded below the points discussed during our meetings and the advice previously provided following a meeting held together with Serco Denholm and LR London on4 June 2007 in relation to a similar type of vessel (Special Purpose Ship). ... 2. Vessel status ... 3. From discussions with the owner it is noted that the vessels are being designed to operate within the context of a safety case generated by the owner. 3. UK Law/ Classification ... 3. In terms of personnel onboard vessels under UK law there are only definitions in place for “passengers” and “crew”. 4. the vessel required to comply with the requirements for passenger vessels, if more than 12 passengers are carried. 5. The IMO Special Purpose Ship Code (SPS) is not currently implemented in UK law and the definition of “Special Person” does not currently exist. 6. Any request for an exemption from any prescribed requirements (UK Law) would be based on the vessel at least complying with the requirements of the IMO Special Purpose Ship Code, SAFCON construction certification and the vessel being safely designed, built and operated within the context of a safety Case. 7. Exemption certificates where applicable would be issued by the MCA. These need to be sought by the owner in conjunction with the Builder/ Designer with supporting justification. 8. The risk of UK law or any exemption not being accepted by any host country or foreign administration lies with the owner, if the vessel is to trade internationally. 4. Construction ... 2. The watertight doors fitted within watertight bulkheads are to be approved sliding watertight doors. Please advise if you propose any alternatives? ... 11. Stability information (MCA) 1. The intact and damage stability information is to comply with the Passenger vessel, or SPS requirements, as applicable. This information should be submitted at an early date for an independent check of the data together with a General Arrangement, Lines Plan and details of the initial down-flooding points. 2. Any exemption from the Passenger ship requirements would need to include compliance with the severe wind and weather criteria. 3. The intact and damage stability information is to be submitted in a format (see guidance) that can be approved indicating compliance with the requirements for Code certification. Any proposal necessary to achieve compliance should be forwarded in advance, or at an early stage. ... 32. Special Purpose Ship Code 1. The MCA is not a signatory to the Special Purpose Ship Code and as such a Special purpose ship certificate cannot be issued under the authority of the UK Government. However, a letter of compliance (or equivalent) confirming compliance with the relevant requirements and current convention requirements can be issued by the LR where appropriate. 2. The primary convention certificates will need to be in place based on the vessel year of build.”
“MCA exemptions to come from SDMS/Serco – MCA visit 25th March… SPS compliance key to exemption agreement… Specific exemptions: ➀ sliding w/tight doors… NOTE MCA have declared need for class 1 exempted as opposed to class 7 with SPS…”
“Meeting17 April 2008 Points raised during our meeting Rajeev Vohra, Gerry Walker and Simon Judge in Plymouth on17 April 2008 will have an influence on the damage stability in particular and will need to be taken into account in the future.”
“... The purpose of the meeting was to discuss the items that were raised in our letter of27 March 2008 and to discuss exemptions ...”
“ i. Modification of the two Engine Rooms ii. Removal of the container stowage below deck in way of the Engine Room/s. iii. Reconsider the fuel tank arrangements…”
“There has been a slight variation to the approach for seeking exemptions from Passenger Vessel requirements and it is anticipated that a single request Exemption based on compliance of the Special Purpose Ship Code and any other specified conditions. This is in the process of being agreed by the MCA HQ, and I hope to be able to confirm this shortly.”
“An exemption is being sought from the requirement to have a sliding WT door, although this may not be sought with the proposed modifications.”
“1. Comments raised in letter dated27 March 2008 are accepted/in hand and the following added. 2. The watertight subdivision is likely to significantly change and a further submission of damage stability information will be made.”
“1.1 Watertight doors forming part of the required watertight sub division are to be sliding watertight doors.”
“Please refer to our letter dated27 March 2008 which refers to the survey requirements/elements in terms of UK law. These plans should be presented to LR as part of the plan approval process requirements. Meeting17 April 2008 The points raised above were discussed during our meeting Rajeev Vohra, Gerry Walker and Simon Judge. However, there are now variations proposed in terms of the arrangements that will need to be taken into account in the future.”
“Drawing HI/9187/101 General Arrangement … Meeting17 April 2008 The points raised above were discussed during our meeting Rajeev Vohra, Gerry Walker and Simon Judge. However, there are now variations proposed in terms of the arrangements that will need to be taken into account in the future.”
“Following the meeting at Plymouth, UK between Adyard, Serco and MCA a number of issues have arisen that will require major changes to the General Arrangement at reference. I have listed below the issues raised by the UK MCA and those of Serco. 1. Engine Room – The combined engine and generator room with the hold in the centre was not acceptable to the MCA from the damage stability point of view. It is suggested that the hold is removed and the forward engine room bulkhead is moved from Frame 48 to Frame 42 as a minimum. 2. Hold/storage area – The vessel will still require some below deck storage, but it does have to have the capacity to load a 20’ ISO Container. It is possible that the workshop could be moved and the hold area be positioned between Frames 5 and 12. … 7. Exemptions from UK Accommodation Regulations – Statutory Instrument 1997 No 1505 –The Merchant Shipping (Crew Accommodation) Regulations 1997 should be complied with where possible, but in any case where these regulations can not be met an exemption will be required from the MCA. I have listed a few areas where the design does not comply… I am sure that exemptions can be obtained for all of these issues, but they will need applying for as soon as possible. I have attached a copy of a similar exemption that Serco submitted recently.”
“The moving of the forward engine room bulkhead from Frame 49 to Frame 42 was only a suggestion. The design is yours and you make these decisions. The specification calls for the design to meet the requirements of the SPS Code, IMO Intact Stability Code and IMO Resolution A.749(18) as amended by Resolution MISC 75(69). In any case the requirements of stability and subdivision must be to the satisfaction of the Administration, in this case the MCA…”
“The arrangements are noted to have been modified to include the points raised in my letter dated17 April 2008 and considered acceptable, including: 1. Modification of the engine rooms. 2. Removal of the container stowage below deck in way of Engine Rooms. … The remaining points raised in our letter dated21 April 2008 are understood to be being addressed.”
“It was agreed that all main items of non-compliance where exemption from the required codes and standards had been identified and had been de-risked with the certifying authority as much as could be expected. It was agreed that the process of applying for exemptions should start soonest – ACTION – ADYARD to review SI 1997 1505 vs 50M vessel to identify compliance/non compliance and revert to SERCO with findings, for submission of exemption request. ADYARD to request exemption for anchors direct to LR…”
“Damage Stability Watertight doors forming part of the required watertight subdivision are to be sliding watertight doors.”
“The following is drawn to your attention: 1. Watertight doors, where required for subdivision purposes are to be of an approved sliding type.”
“We would also request clarification on the following stability criteria applicable to this vessel. Intact stability as per IS code [IMO 749(18)] Both vessel are less than 50m and are carrying less than 50 special personnel… They are under UK flag. Since SPS code is not ratified under UK flag, we are following OSV code [Resolution MSC.235(82) – Adoption of the Guidelines for the Design and Construction of Offshore Supply Vessels, 2006] for damage stability calculations. Please confirm that this is acceptable to MCA.”
“Further to the email on Tuesday from our Brian Thomson, I have been asked to clarify the current requirements for UK vessels which carry Special Purpose Personnel onboard. I have attached a copy of our draft Marine Guidance Note (MGN) which lays down the current MCA policy with respect to this type of vessel. The damage stability requirements which will apply to Adyard Hull Nos. 10 & 11 will be dependent on the standard which the vessels are to be certified under. There are three possible routes to certification which could apply, each with a different damage stability standard and these are outlined below: 1. If the vessel is to be certified as a cargo ship as outlined in the MGN, the proposed stability standard ie IMO Resolution MSC 235(92) will be acceptable. However, it should be noted that if this is the case, any special personnel carried on board the vessel would need to meet the definition of crew and be signed on in the vessel’s articles and also meet the minimum standards of training etc. in accordance with STCW. 2. Alternatively, if the vessel is to be certified as a passenger ship, passenger ship construction standards (including stability considerations) would need to be complied with in full. However, in this case any special personnel carried onboard would not require any additional certification. 3. Finally, if it intended that the vessel will be certified as a Special Purpose Ship and an SPS Code certificate issued, it will be necessary for the vessel to comply with the requirements of IMO Code of Safety for Special Purpose Ships Resolution MSC.266(84) [the 2008 SPS Code]. I have attached a copy of this code to this email. It can be seen that Special Purpose Ships are now considered under the probabilistic damage stability framework as implemented by the latest revision of SOLAS. As can be seen from the above, at this stage, it is important to determine the type of certificate which will be issued to the completed vessel and we would be grateful if you could confirm this to us as soon as possible…”
“During a recent meeting held with Mr Simon Judge of the [MCA] I discussed the issue of damage stability of the vessels at subject. He advised me that ADYARD were proposing to apply a different standard to that required under the Special Purpose Ship Code (SPS Code), for vessels operating with the numbers of special category personnel that we intend to carry onboard these ships. He advised me that ADYARD were seeking to apply a standard the same as for offshore supply vessels. I am surprised that ADYARD are making this request as early on in the design process as a result of initial feedback received on the General Arrangement Plan given by MCA, we removed the requirement to fit an ISO container below deck in order for ADYARD to achieve compliance with the SPS Code for the 50M design. I believe your request is with the MCA policy for consideration. You have indicated in your correspondence with the MCA that failure to obtain a dispensation from the SPS Code damage stability criteria will have an adverse effect on the build programme due to any ensuing rectification work. Please be advised Serco Ltd will not accept any excuse for failure to secure this dispensation from the MCA as mitigation against late delivery. Compliance to the SPS Code is a contractual requirement and the risk in achieving compliance lies solely with ADYARD.”
“Since the vessel is less than 50m in length and carrying less than 50 special personnel, the design was based on the consideration that necessary exemption will be provided. It is only suggestion from us that offshore supply vessel damage stability requirements can be considered by Administration as appropriate for this vessel as an alternative. There was no clear communication from MCA that these vessels should be treated as more than 50m length and apply the required damage stability criterion. Please note that the damage stability as per SPS Code as applicable to vessel more than 50m in length can be applied if required by Serco/MCA. A confirmation on this is required to redo the calculations and submit to MCA for approval. We expect the present subdivision will meet SPS Code requirement. However, there is a problem in respect of ER vent duct. Present location of vent duct will fall within damage zone and will lead to progressive flooding of ER. Any watertight arrangement of vent duct at ER bulkhead will be difficult. The ducts will have to be led on to main deck near winch per our earlier proposal, which was not accepted by Serco considering noise problems. … To our best of understanding, SERCO’s contention that large store room was removed to meet SPS Code was not correct as at that time no damage stability calculations were submitted. Please note that as far as SPS Code is concerned the engine room damage is not to be considered. However, it was felt by MCA that ER is very large and store was coming in between and accordingly the layout was modified.”
“MCA APPROVALS ADYARD are still waiting from the MCA guidance on what Damage Stability criteria has to be applied to the 50M vessels. Early on in the design process the MCA indicated that additional damage cases would need to be considered, a requirement driven by the length of the Engine Room. At the time Serco relaxed the design requirement to fit a 20ft ISO container below decks to enable ADYARD/HI to improve sub-division. Recent discussions with HI representative indicate that the present design will meet the required Damage Stability criteria – ADYARD/HI to request resolution on this soonest and concurrently ADYARD/HI to run model for one compartment flooding. The result of the need to comply with Damage Case would mean the need to fit two SLIDING WATERTIGHT DOORS. ADYARD have stated that the lead time for these doors in 12-14 weeks, a 4 week delivery and two weeks installation and testing, 20 weeks from order to testing.”
“… during the meeting it was questioned on what size the door would be at frame 5 as head height in Steering Gear Room is between 1.0 M and 1.5 M and the practicality of accessing the store and transfer of even small items via Steering Gear due to head height, installed equipment and vertical access to Main Deck of the Steering Gear Room. It was suggested that it may be more practical for the WT Door to be transferred from Frame 5 to Frame 12 – pending the intended usage of this store. Martin as you know after this meeting I discussed this by telecon, when you confirmed access via Frame 12 would be acceptable but you also raised the excellent point of how to access the Steering Gear Room for normal routine checks etc if main Deck inaccessible due to weather conditions, there is also the requirement of access due to Steering Gear failure and having to use local control. This would indicate there is a clear case of requirement for WT doors at both Frame 5 and 12…”
“... It has always been a contractual requirement that both vessels comply with the [SPS] Code ... At a tripartite meeting held between Serco, Adyard & MCA in March 2008, various aspects of the then General Arrangement were discussed ... It was indicated by the MCA ... that due to the length of the engine room, exemption could not be applied and the vessel would have to comply with criteria for vessels greater than 50 metres i.e. Damage should be assumed to occur anywhere in the vessel length between transverse watertight bulkheads, even though the vessel is less than 50 metres. ...SDMS would like to take this opportunity to remind Adyard that under Article 1, Clause 3 of the contract, the Builder has an obligation to design and construct the vessels in accordance with class requirements. Which is why since January 2009, SDMS has consistently requested that Adyard engage fully with the MCA in order to de-risk the programme. Unfortunately this issue is symptomatic of the state of the whole build, but ultimately remains Adyard’s responsibility to deliver within the requirements laid out in the contract. With regard to the technical changes identified in paragraph 8 of your letter, SDMS is willing to consider a VTS covering these changes (some of which have either been in the design for over a year or would have been required regardless of the SPS Code) providing that they are at nil cost to SDMS and that there is no adverse effect on the delivery dates.”
“As far as SERCO vessels are concerned, the requirements of old SPS Code and the new Code are more or less same except that as per new rules, the damage stability should be based on probabilistic damage considerations. These calculations are quite involved and takes considerable tome and unless these calculations are carried out, one cannot be sure that vessel will meet the new criteria. The vessel as being constructed now meets the damage stability requirements as per Old SPS Code and this criteria is acceptable to MCA as communicated to us. These calculations are still under review by MCA.”
“Aim of this paper is to bring out the factors contributing to the not so healthy state of affairs in our ship building yard in Abu Dhabi and also seek management’s support for the measures to be introduced to correct the same. State of currently running projects: 1. Delma Landing craft: The project is running very late and already consumed 26 months (against 8 months agreed)… 2. Both BUE Cutting barges were handed over in June 09. Though there was delay in completing the projects, the delay was mostly due to variations proposed by clients and hence attributable to clients… … 3 SERCO vessels: Since this project is the most complex of all and also the hottest both in terms of schedule compliance and cost concerns, this was taken as the case for studying the functioning of this ship building yard. In my opinion, this project has been handled very badly right from the beginning and has problems in every aspect of ship building. It is detailed below function-wise. Engineering: … No forward planning was carried out and as a result the engineering at Yard practically took off just 5-6 months ago i.e. 13 months after the award of contract… Yard is not possession of any software for undertaking interference analysis and correction. Routing of pipes was carried out on Auto CAD platform and is process is iterative and error prone… Rework is anticipated since there is no mechanism to check the interferences arising between structure, piping and electrical and ducting works. Average experience of engineering team members is only 3 years and many are first timers. Steel material was grossly under estimated by engineering resulting procurement delays. Procurement: Procurement was one of major short comings of the project. Steel procurement was carried out without clear technical delivery conditions and most of the time the material was found non LR grade and required to be recertified. Huge amounts were spent for recertification and in the process exceeded the Lloyds survey budgets. Other than the major equipment that were part of 1st stage payment none were ordered in the first 6 months of project… all late purchases are being rushed, hence at extra price, mostly Air-freighted. A huge list of items still outstanding to be ordered / received. Construction: No Production manager or Engineer was appointed for the project. No dedicated production personnel were allocated. Workmen were taken on hire and put on job. Lack of accountability resulted huge man-hours per ton with estimated cost overrun of 220%. Non availability material at right time and lapses from engineering resulted in huge and unchecked rework. Project management: Though there was a dedicated Project Manager for the project, it was not managed systematically. Planning was done in a very unprofessional way due to lack of an experienced planner and improper guidance from the project team. The importance of Material planning & facilities planning was grossly neglected. Lack of coordination… resulted in huge delays in material procurement, wrong procurements, thus resulting in rejection of material / equipment by both classification society and client. Failure of logical build sequence and interface management between different sections of ship construction (Piping, Electrical, Equipment layout, etc.) resulted in a lot of reworks in the past and it is unavoidable even in future…. Cost Control: Initial estimation and pricing of the vessel was done without gathering adequate information about the specification of the ship and its machinery, hence ended up spending more during the project and is continuing even now… no serious attempt was made to control [labour costs] within the budget, resulted in cost overrun of whopping 220%. The costing sheet of the project is already showing in the negative, many more months to go, more things to purchase. Corrective Actions: Efforts are on to speed up construction… However, all such measures can facilitate in putting the project on track only in terms of schedule compliance. … Note: This report is to be seen as an attempt to identify the problems and effort to improve efficiency of ship building yard. There is no intension [sic] of showing any individual or department in poor light.”
“Sl Activity delayed Cause of delay 1 Raising MTOs for steel Wrong estimation during detail engineering 2 Order placement of equipments Non clarity in specification & non allocation of project engineer 3 Release of production drawings Lack of design dept involvement 4 Generator seating installation Modification on the class approved drawing 5 Blasting painting of machinery compartment Re-work due to modifications and poor workmanship 6 Blasting painting of superstructures Re-work due to poor workmanship”
“Estimating Generally the hours required to outfit the vessels have been underestimated or not estimated at all… … Planning The jobs are planned around steel or aluminium construction with little regard given to the cost of outfit. This practice means that the cost of doing any particular function is never at the estimated cost – it is now anywhere between 4 and 8 times higher than the estimate. Attached operating curve. Project Management & Job costing There are absolutely no standardized project management systems or reporting structures in place. Project Management (Managers) is non-existent in both yards. JDE is a good accounting package, but the set up of job numbering in line with the WORK hasn’t happened and therefore the control of the work is near impossible. There is no way to know the work left in a project or control it… The job number system used on the Serco project is a case in point. … Accurate ETC’s are non-existent because the Project Managers don’t have any understanding of the work that is left to complete at any point in the project – this should be a daily project management activity. Engineering & Technical Support The engineering tools are woefully inadequate… Engineering is planned to be late (through lack of understanding of the importance of Pre-outfit)… Procurement The philosophy of buying the cheapest is not necessarily the best – e.g. BUE barges were drawn with 3m wide plates Topaz purchased 2m wide plates thereby (in one seemingly insignificant decision) doubling the meterage of welding on panels – doubling the welding at this early stage – doubles the time to completion for the panel – thereby contributing to delivery pressure at a very early stage of the build program. Once the steel or aluminium is overrun either on time or budget it can never be picked up in the later outfit stages. … Approval process for project related purchases is onerous and is leading to delays in deliveries… Production Not enough supervision on the job and what is there is not competent to build ships. Too many workers assigned to one job. And no control of what they are to get done. Planned manning 465 on Serco boats actual charges 851. The philosophy to date has been to move the men to the job all the time as opposed to moving the job to the men – must have the men doing the same job all the time because the skills are not high enough to have men doing a variety of tasks… Product by stage construction The ships thus far have been constructed using archaic processes it is accepted practice (in both yards) to close out areas of structure then install outfit items – almost all the work is done out of position and very costly in terms of manhour expenditure and leaving little chance of delivering on time. The vessels that we are constructing are small and there is no opportunity to decrease the duration of time to complete the work by adding men to tight in accessible spaces. This methodology is the single biggest contributor to inefficiency and poor productivity… Production Facilities Need a lot of improvement in Liwa – there is no metal forming equipment and this costs huge manhours in attempting to shape steel in bows, sterns, and turn of bilge areas… … Production Personnel Need to dramatically improve the quality of supervision and the general craftsmanship skills in the shipyards. The rework (if it was tracked accurately) would be in the 30 to 40% range based on my observations of the number of areas of “do-overs” that you see happening when walking about…”
“Request you revert back on the acceptability of the same”
“1. Comments raised in letter dated27 March 2008 are accepted/in hand and the following added. 2. The watertight subdivision is likely to significantly change and a further submission of damage stability information will be made.” (7) If there had been an approval or intimated approval of an exemption to the SPS Code in respect of damage stability requirements this is where one would expect it to be noted. It is not. On the contrary it referred back to what had been said in the27 March 2008 letter under this head, namely: “The intact and stability information is to comply with the Passenger Vessel, or SPS requirements, as applicable. This information should be submitted at an early date…”
“The remaining points raised in our letter dated21 April 2008 are understood to be being addressed.”
“MCA Exemptions – It was agreed that all main items of non-compliance where exemption form (sic) the required codes and standards had been identified and had been de-risked with the certifying authority as much as could be expected.”
“47…..The essence of the prevention principle is that the promisee cannot insist upon the performance of an obligation which he has prevented the promisor from performing. 48. In the field of construction law, one consequence of the prevention principle is that the employer cannot hold the contractor to a specified completion date, if the employer has by act or omission prevented the contractor from completing by that date. Instead, time becomes at large and the obligation to complete by the specified date is replaced by an implied obligation to complete within a reasonable time. The same principle applies as between main contractor and sub-contractor. 49. It is in order to avoid the operation of the prevention principle that many construction contracts and sub-contracts include provisions for extension of time. Thus, it can be seen that extension of time clauses exist for the protection of both parties to a construction contract or sub-contract.”
“56. From this review of authority I derive three propositions. • (i) Actions by the employer which are perfectly legitimate under a construction contract may still be characterised as prevention, if those actions cause delay beyond the contractual completion date. • (ii) Acts of prevention by an employer do not set time at large, if the contract provides for extension of time in respect of those events. • (iii) In so far as the extension of time clause is ambiguous, it should be construed in favour of the contractor. 57. The third proposition must be treated with care. It seems to me that, in so far as an extension of time clause is ambiguous, the court should lean in favour of a construction which permits the contractor to recover appropriate extensions of time in respect of events causing delay. This approach also accords with the principle of construction set out in Lewison, The Interpretation of Contracts, 3rd ed (2004), at p 231, para 7.14: “Where two constructions of an instrument are equally plausible, upon one of which the instrument is valid, and upon the other of which it is invalid, the court should lean towards that construction which validates the instrument.” • (i) Actions by the employer which are perfectly legitimate under a construction contract may still be characterised as prevention, if those actions cause delay beyond the contractual completion date. • (ii) Acts of prevention by an employer do not set time at large, if the contract provides for extension of time in respect of those events. • (iii) In so far as the extension of time clause is ambiguous, it should be construed in favour of the contractor. “Where two constructions of an instrument are equally plausible, upon one of which the instrument is valid, and upon the other of which it is invalid, the court should lean towards that construction which validates the instrument.”
“Assuming (as is in fact appropriate in the present case) that the Contractor is many months in delay by reason of its own default. The Employer decides a week before the (original unextended) contract completion date that he wishes a wall to be painted blue instead of the contractually specified red. At the time of the instruction, because of the Contractor’s delays, the wall is not even built yet. The paint will take 5 weeks to procure, but will still arrive before the completion of the wall and the date upon which the Contractor would require the paint in line with his delayed progress. Mr Swan’s analysis would appear to entitle the Contractor to 4 weeks’ extension of time (by adding 5 weeks to the date of impact, and comparing with the original contract completion date). However, I would suggest that common sense tells the observer that such an extension was neither fair nor reasonable, where the employer’s actions have not actually delayed the progress of the Contractor by a single day.”
“At the foundation of this code is the obligation of the contractor to complete the works within the contractual period terminating at the completion date and on failure to do so to pay liquidated damages… But superimposed on this regime is a system of allocation of risk. If events occur which are non-contractor’s risk events and those events cause the progress of the works to be delayed… the contract provides for the completion date to be… adjusted to reflect the period of delay so caused… The underlying objective is to arrive at the aggregate period of time within which the contract works as ultimately defined ought to have been completed having regard to the incidence of non-contractor’s risk events…”
“… the function of the completion date is to identify the end of the period of time commencing with the date of possession within which the contractor must complete the works, including subsequent variations… The completion date as adjusted retrospectively is thus not the date by which the contractor ought to have achieved or ought in future to achieve practical completion but the date which marks the end of the total number of working days starting from the date of possession within which the contractor ought fairly and reasonably to have completed the works…”
“15……It seems to me that it is a question of fact in any given case whether a relevant event has caused or is likely to cause delay to the works beyond the completion date in the sense described by Colman J. in the Balfour Beatty case. In the present case, the respondent has what [she] calls both a negative and a positive defence to the EOT/I claim. The negative defence amounts to saying that the variations and late information etc relied on by the claimant did not cause any delay because the activities were not on the critical path, and on that account did not cause delay. The positive defence is that the true cause of the delay was other matters, which were not relevant events, and for which the contractor was responsible. In my view, the respondent is entitled to advance these other matters by way of defence to the EOT/I claim. It is entitled to say (a) the alleged relevant event was not likely to or did not cause delay e.g. because the items of work affected were not on the critical path, and (b) the true cause of the admitted delay in respect of which the claim for an extension of time is advanced was something else. The positive case in (b) supports and fortifies the denial in (a). The respondent could limit its defence to the claim by relying on (a), but in my view there is nothing in clause 25 which obliges it to do so. Likewise, when considering the matter under the contract, the architect may feel that he can decide the issue on a limited basis, or he may feel that he needs to go further, and consider whether a provisional view reached on that basis of one set of facts is supported by findings on other issues. It is impossible to lay down hard and fast rules. In my judgment it is incorrect to say that, as a matter of construction of clause 25 when deciding whether a relevant event is likely to cause or has caused delay, the architect may not consider the impact on progress and completion of other events.”
“… if there are two concurrent causes of delay, one of which is a relevant event, and the other is not, then the contractor is entitled to an extension of time for the period of delay caused by the relevant event notwithstanding the concurrent effect of the other event. Thus to take a simple example, if no work is possible on a site for a week not only because of exceptionally inclement weather (a relevant event), but also because the contractor has a shortage of labour (not a relevant event), and if the failure to work during that week is likely to delay the works beyond the completion date by one week, then if he considers it fair and reasonable to do so, the architect is required to grant an extension of time of one week. He cannot refuse to do so on the grounds that the delay would have occurred in any event by reason of the shortage of labour.”
“… they have to estimate a likely date for final completion without allowing for any delay caused by the relevant event, and they have to determine whether and if so to what extent the relevant event will cause that date to be delayed…”
“It is well settled that in building contracts – and in other contracts too – when there is a stipulation for work to be done in a limited time, if the other party by his conduct – it may be quite legitimate conduct, such as ordering extra work – renders it impossible or impracticable for the other party to do his work within the stipulated time, then the one whose conduct caused the trouble can no longer insist upon strict adherence to the time stated. He cannot claim any penalties or liquidated damages for non-completion in that time.”
“106. ….delay caused by the contractor…..is irrelevant so far as the contractual exercise is concerned. That exercise does not involve an analysis of competing causes. It involves a prediction of a Completion Date, taking into account that originally stated in the contract and adding the extra time which a Relevant Event would have instructed, all other things being equal. 110. …the exercise remains one of looking at the Relevant Event and the effect it would have had on the original (or already altered) Completion Date. If a Relevant Event occurs (no matter when), the fact that the Works would have been delayed, in any event, because of a contractor default remains irrelevant.”
“42. ….In the first place, before any claim for an extension of time can succeed, it must plainly be shown that a relevant event is a cause of delay and that the completion of the works is likely to be delayed thereby or has in fact been delayed thereby. In the second place, the decision as to whether the relevant event possesses such causative effect is an issue of fact which is to be resolved, not by the application of philosophical principles of causation, but rather by the application of principles of common-sense. In the third place, the decision-maker is at liberty to decide an issue of causation on the basis of any factual evidence acceptable to him. In that connection, while a critical path analysis, if shown to be soundly based, may be of assistance, the absence of such an analysis does not mean that a claim for extension of time must necessarily fail. In the fourth place, if a dominant cause can be identified as the cause of some particular delay in the completion of the works, effect will be given to that by leaving out of account any cause or causes which are not material. Depending on whether or not the dominant cause is a relevant event, the claim for extension of time will or will not succeed. In the fifth place, where a situation exists in which two causes are operative, one being a relevant event and the other some event for which the contractor is to be taken to be responsible, and neither of which could be described as the dominant cause, the claim for extension of time will not necessarily fail….”
“The Protocol recommends that the Updated Programme should be the primary tool used to guide the CA (Contract Administrator) in determining the amount of the EOT. The EOT should be granted to the extent that the Employer Risk Event is predicated to prevent the works being completed by the then prevailing contract completion date.” (2) Reliance was placed upon the reference to the “then prevailing contract completion date”