“…the defendant shall in the alternative post a security in the form of Bank Guarantee in the sum of US$12 million .”
“I have been authorised by the Assistant Commissioner of Customs (Upstream Petroleum Operations) to inform you that in view of a court order that is to be served you by the bailiff from a competent court of jurisdiction in Ghana, you are to allow the officers of the Ghana Navy to board your vessel. They are not to interfere with the loading operation but will detain and proceed to Takoradi with your vessel after the operation”
“…upon casting off from JAK FPSO, Ghana Naval Personnel have boarded the vessel and instructed us to Procced [sic.] to Takoradi anchorage as per Court Order. Vessel Proceeding towards Takoradi Anchorage.”
“Note below ships under Rhine as per attached Q88 no change in tech management, disponent owner remains Aissot, Commercial Operator now Rhine Shipping DMCC.”
“A Vista Hedge is the holding of a linked group of physical transactions, whose price risk is then managed by allocating transactions, internal or external, to that Vista Hedge by a central risk management desk, probably in consultation with the custodian of the Vista Hedge.”
“…the risk is internalised into a separate bucket, where the risk still remains. There is then a decision that is made on whether or not the risk that exists in a paper portfolio is then consolidated with other risks throughout the business, et cetera, and then the net of all of the risk … there is a decision made to keep some of that risk or to get rid of some of that risk externally.”
“In the event of arrest/detention or other sanction levied against the vessel through no fault of Charterer, Owners shall indemnify Charterer for any damages, penalties, costs and consequences and any time vessel is under arrest/detained and/or limited in her performance is fully for Owner's account and/or such time shall not count as laytime or if on demurrage, as time on demurrage. In the event of arrest/detention or other sanction levied against the vessel through no fault of Charterer, Charterer shall be entitled, in Charterer's option, to terminate the Charter. Termination or failure to terminate shall be without prejudice to any claim for damages Charterer may have against Owner.”
“206. … Once a judge has assessed a chance as greater than 90%, an assessment that the chance is 93% or 96% or 99% lends a spurious degree of precision. It is not possible to assess the chances of the sort of events involved in the 2009 Counterfactual with such fineness. They are not events that can be tested in laboratory conditions. Having reached an assessment of greater than 90% for each contingency, he was, in my judgment, entitled in this case to treat it as being, in counsel for GT’s phrase, a “racing certainty”
“You can prove that a past event happened, but you cannot prove that a future event will happen and I do not think the law is so foolish as to suppose that you can. All that you can do is to evaluate the chance. Sometimes it is virtually 100 per cent certain: sometimes virtually nil. But often it is somewhere in between.”
“…the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think it is helpful to seek to lay down in percentage terms what the lower and upper ends of the bracket should be”.… 209. In my judgment, the proper analysis of the judge’s reasoning is that he was satisfied that the chances of each contingency were so high that they fell to be regarded as certainties, not because of a principle or presumption that 90% equalled 100% but because a distinction between certain and almost certain was in this case meaningless. It was a conclusion that was open to the judge, both as a matter of principle and on the authorities.”
“We received confirmation on mt Stena Superior for 05-06 May loading. We were also advised, that the terminal instructed MT STENA SUPERIOR (DJENO ex RC LAYCAN 09-10/05) to arrive and tender NOR on 06th may. Was mt Dilijah confirmed for loading 09-10 May?”
“We have just received the below from our suppliers … QTE From Djeno : From Djeno : We were informed that there will be no vessels substitution so the loading program is as follows: - MT STENA SUPERIOR (laycan 09-10/05) shall tender NOR on 06th may 12h (in accordance with ETA) and will berth upon arrival (no need to send revised doc instructions) - MT DIJILAH (laycan 05-06/05) will arrive after her laycan and will be berthed after MT STENA SUPERIOR. …”
“…where the notional hedging position input in the internal management system as a result of a physical transaction is the purchase of a swap, the “seller” of that swap does not have to agree in any active way to sell the swap. Rather a particular position is allocated automatically to the “seller” of the swap as part of the book accounting exercise, which transfers paper risk within the company for the ultimate purpose of identifying the company’s net exposure. The “seller” is simply the risk management portfolio into which the risk is moved, in this case 1038101, rather than another trader.”
“…having accepted Transworld’s breach as bringing the contract to an end, Glencore not only did but was required to mitigate its loss by closing out its hedges. To have allowed them to run on would have been to speculate in the movement of the price of oil, which Glencore has asserted is no part of its business for present purposes. By doing so, in the words of its own expert, it established its loss. I agree with Transworld that the position as regards the hedges is not res inter alios acta, nor is it equivalent to insurance. Hedging is on the evidence an integral part of the business by which Glencore entered into this contract for the purchase of oil, and since the closing out on early termination established a lower loss than would otherwise have been incurred, that has to be taken into account when determining recoverable loss. To put it another way, if the seller had duly performed the contract Glencore would have closed out its hedges at the then current prices, and there is no reason to put it in a better position in the case of non-performance.”
“Hedging contracts, entered into with third parties to minimise or eliminate the risks of interest rate or market movements, are commercially similar to insurance. In cases of oil sales, however, hedging is an inevitable adjunct of every such sale and accordingly the hedging contract and reasonable action under it (including closing it out when the contract of sale it was to hedge fell through, rather than keeping it open as a market speculation) are to be taken into account in measuring loss and is not res inter alios acta, and may be reasonable mitigatory conduct the costs of which would then be recoverable. The same may be true in other industries. …”
“In my judgment Choil is prima facie entitled to recover$ 2,285,428.15 as representing losses attributable to a reasonable attempt at mitigation. There is, in principle “no sensible or commercial reason why the Court should not take into account the costs of the hedging instruments”: Addax Ltd v Arcadia Petroleum[2000] 1 Lloyd's Rep 496 . In that case Morison J would, if he had been concerned with the claimant's position with their suppliers, have taken into account the hedging costs. In the present case the effect of Choil being left long in naphtha was to expose it to the risk of severe losses if the market dropped. It was reasonable for it to protect itself against those losses by hedging in the way that it did.”
“There is some suggestion that the effect of a trader’s hedging arrangements may be relevant in an assessment of his net recoverable loss, although this is by no means clear, still less established.”
“The general rule is that loss which has been avoided is not recoverable as damages, although expense reasonably incurred in avoiding it may be recoverable as costs of mitigation. To this there is an exception for collateral payments (res inter alios acta), which the law treats as not making good the claimant’s loss. It is difficult to identify a single principle underlying every case. In spite of what the latin tag might lead one to expect, the critical factor is not the source of the benefit in a third party but its character. Broadly speaking, collateral benefits are those whose receipt arose independently of the circumstances giving rise to the loss. Thus a gift received by the claimant, even if occasioned by his loss, is regarded as independent of the loss because its gratuitous character means that there is no causal relationship between them. The same is true of a benefit received by right from a third party in respect of the loss, but for which the claimant has given a consideration independent of the legal relationship with the defendant from which the loss arose. Classic cases include loss payments under an indemnity insurance: Bradburn v Great Western Railway Co (1874) LR 10 Ex 1. Or disability pensions under a contributory scheme: Parry v Cleaver[1970] AC1 . In cases such as these, as between the claimant and the wrongdoer, the law treats the receipt of the benefit as tantamount to the claimant making good the loss from his own resources, because they are attributable to his premiums, his contributions or his work. The position may be different if the benefits are not collateral because they are derived from a contract (say, an insurance policy) made for the benefit of the wrongdoer: Arab Bank plc v John D Wood Commercial Ltd[2000] 1 WLR 857 , paras 92—93 (Mance LJ). Or because the benefit is derived from steps taken by the claimant in consequence of the breach, which mitigated his loss: British Westinghouse Electric and Manufacturing Co Ltd v Underground Electric Railways Co of London Ltd[1912] AC 673 , 689, 691 (Viscount Haldane LC). These principles represent a coherent approach to avoided loss. In Parry v Cleaver[1970] AC 1 , 13, Lord Reid derived them from considerations of “justice, reasonableness and public policy”
“The Hamburg and Munich offices have from time to time conducted what can be described as transactions with one another, under which the Hamburg office has, in what is in form a contract of sale, purported to sell soya bean meal to the Munich office; and the Munich office has purported to buy soya bean meal from the Hamburg office. Those transactions are not, in English law - and English law governs this case, but I see no reason to suppose that German law is different - enforceable contracts of sale, because, just as an individual cannot make a contract with himself which could have any conceivable legal effect, so also different branches of the same corporate legal entity, not themselves separate legal entities, cannot make contracts with one another. That would be precisely the same, in legal analysis, as an individual purporting to contract with himself,…”
“…the submission by the buyers is that transactions between Munich and Hamburg are not contracts in law. That is accepted on all hands. For reasons that I gave at the outset of this judgment, one cannot contract with oneself, even if one is a body corporate and one has what one chooses to regard as being different branches.”
“Once the [GAFTA] Board of Appeal found that there was a general trade practice to regard these inter-office transactions as part of a "string", they were entitled to apply the word "buyer" and the words "subsequent seller" to such transactions, albeit no contracts of sale in the legal sense came into existence when they took place.”
“… where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the claimants to the defendants and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under this special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, would only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract.”
“…of a kind which the defendant, when he made the contract, ought to have realised was not unlikely to result from the breach … the words "not unlikely" … denoting a degree of probability considerably less than an even chance but nevertheless not very unusual and easily foreseeable.”
“52. Damages for breach of contract will not be recovered where the damage suffered is too remote, that is to say not within the reasonable contemplation of the parties at the time they made the contract: see Hadley v Baxendale (1854) 9 Exch 341 and subsequent cases. Traditionally, therefore, when an issue of remoteness arises, the question has been whether the loss claimed was of a kind or type which would have been within the parties' reasonable contemplation: see The Sylvia at [23]. More recently, however, a principle of remoteness has been developed to the effect that even if a loss is within the parties' reasonable contemplation, there may be cases in which “the context, surrounding circumstances or general understanding in the relevant market shows that a party would not reasonably have been regarded as assuming responsibility for such losses”: see The Achilleas[2008] UKHL 48 ,[2009] 1 AC 61 at [9]. 53. This development was summarised by Toulson LJ in Siemens Building Technologies Ltd v Supershield Ltd[2010] EWCA Civ 7 ,[2010] 1 Lloyd's Rep 349 at [43]: “Hadley v Baxendale a remains a standard rule but it has been rationalised on the basis that it reflects the expectation to be imputed to the parties in the ordinary case, i.e. that a contract breaker should ordinarily be liable to the other party for damage resulting from his breach if, but only if, at the time of making the contract a reasonable person in his shoes would have had damage of that kind in mind as not unlikely to result from a breach. However, South Australia and Transfield Shipping are authority that there may be cases where the court, on examining the contract and the commercial background, decides that the standard approach would not reflect the expectation or intention reasonably to be imputed to the parties.” 54. The principle may therefore be regarded as a principle of remoteness, as in The Achilleas itself, or as a matter of construction or implication, as in John Grimes Partnership Ltd v Gubbins[2013] EWCA Civ 37 , [2013] PNLR 17 at [24], where Sir David Keene said: “I too agree with the summary of the law provided by Toulson LJ in Supershield, although I would put it in slightly different language. It seems to me to be right to bear in mind, as Lord Hoffmann emphasised in The Achilleas, that one is dealing with the law of contract, where the situation is governed by what has been agreed between the parties. If there is no express term dealing with what types of losses a party is accepting potential liability for if he breaks the contract, then the law in effect implies a term to determine the answer. Normally, there is an implied term accepting responsibility for the types of losses which can reasonably be foreseen at the time of contract to be not unlikely to result if the contract is broken. But if there is evidence in a particular case that the nature of the contract and the commercial background, or indeed other relevant special circumstances, render that implied assumption of responsibility inappropriate for a type of loss, then the contract breaker escapes liability. Such was the case in The Achilleas.” 55. As explained by Hamblen J in The Sylvia at [40], such cases are likely to be relatively rare. They will arise “where the application of the general test leads or may lead to an unquantifiable, unpredictable, uncontrollable or disproportionate liability or where there is clear evidence that such a liability would be contrary to market understanding and expectations”
“shall indemnify Charterer for any damages, penalties, costs and consequences”