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Egon Oldendorf V. Libera Corporation Notes

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GON OLDENDORF V. LIBERA CORPORATION E

FACTS The plaintiffs are a German commercial partnership with unlimited liability based in
Lübeck. The defendants are a Japanese corporation based in Kure, near Hiroshima.
This action was commenced by the plaintiffs by writ endorsed with points of claim
issued Feb. 22, 1994. The plaintiffs claim damages for breach of an agreement said to
have been made for a 10­year charter to the plaintiffs of two Panamax bulk carriers to
be built for the defendants in Japan. The defendants by summons dated July 12, 1994
apply under R.S.C., O. 12, r. 8 for, inter alia, an order setting aside the writ,
discharging the order for leave for service out of the jurisdiction and declaring that
the Court has no jurisdiction, or declines to assume any, over the defendant in respect
of the action. It is common ground that the parties in March, 1993 reached an agreement which
provided for the charter of two such Panamax vessels (and also for the plaintiffs as
charterers to have a purchase option) subject to conditions. The parties are however
at issue whether the conditions were satisfied or waived. The agreement was recorded in fax messages sent by brokers, Tokyo Shipbrokers Ltd.
("TSL"), to the defendants on Mar. 19 and to the plaintiffs on Mar. 22, 1993. TSL are
an English company. The two conditions in the agreement read as follows: Sub owners finally signing newbuilding contracts with owners' board
approval declarable latest 15th April 1993, cob Japan. [and]
Moa to be mutually agreed and attached to c/p. .
The plaintiffs, as TSL envisaged might be the case, preferred to use their own recent
fixture of Chemi Ocean, and sent TSL a copy accordingly on Mar. 22, 1993. This was
in turn copied to the defendants and was then used in discussions on charter­party
details. The Chemi Ocean charter was also on the NYPE form but with the arbitration
clause amended to provide for London arbitration, as follows:

17. That should any dispute arise between Owners and the Charterers, the
matter in dispute shall be referred to as per Clause 75.

75. Any dispute arising under the Charter to be referred to arbitration in
London The discussions on charter­party terms were successfully concluded by Apr. 23, 1993.
There was no express reference to either cl. 17 or cl. 75. But it is apparent, as one
would expect, that there were detailed discussions on many individual clauses which
raised matters of concern, both earlier and later in numbering than cll. 17 and 75. The
obvious inference is not that cll. 17 and 75 were in some way overlooked, but that they
were read by the defendants and found acceptable. The defendants' evidence contains

no suggestion to the contrary. They do not suggest that they were either unaware of or
failed to understand cl. 17 and 75. On May 20, 1993 the defendants reached heads of agreement subject to contract for
the construction of the two vessels by Sasebo Heavy Industries Corporation Co. Ltd.
("Sasebo") at a total price of Yen 6250m. The plaintiffs' case is that Mr. Fukada, who was at the time the defendants' managing
director, agreed to the lifting of the signing subject in the light of these heads of
agreement. They say that he agreed to this during a telephone conversation with Mr.
Suzui (who happened at that date to be in London), the contents of which Mr. Suzui
immediately passed on to the plaintiffs. Mr. Suzui has confirmed this account in an
affidavit. The defendants' case is that Mr. Fukada never agreed, and that there must
have been some confusion. After his return to Japan, Mr. Suzui on May 25, 1993 sent a fax stating inter alia as
follows to the defendants for Mr. Fukada's attention: Ref. various phone conversation, just for sake of good order, we lifted owners'
subject on the 20th May 1993 on your behalf which was acknowledged by
charterers thus the deal stands now clean and we just have to sort out MOA
details technically for mutual agreement. Discussions then took place on the terms of the MOA. The negotiations were based on
a pro forma Norwegian Saleform, 1987 MOA which the plaintiffs at some point also
supplied to the defendants. This form provided in lines 133­150 for arbitration of
disputes in a city left blank in line 135, and for the proper law to be the law of the
country agreed as the place of arbitration. The discussions on the terms of the MOA
were successfully concluded by May 27, 1993, on which day TSL faxed to the
plaintiffs: "So we finally wrap up the deal". The dollar­yen exchange rate moved unfavourably to the defendants in early June,
1993, creating unforeseen difficulties in the way of their intended contract with
Sasebo, which was not as a result signed on or by June 3, 1993. On June 8, 1993, the
defendants reported to the plaintiffs that they had failed to overcome their difficulty
with Sasebo, regretting the delay and asking the plaintiffs to be patient, saying that
they were doing their best in order to fix the contract [with Sasebo] as soon as
possible. Mr. Suzui's reaction to this on June 10, 1993 was to make clear his view that the
defendants had lifted the signing subject and agreed the details and to suggest that
they "confirm the recap from which we cannot turn down the deal technically".
Defendants continued their stance that the ship building contract could be fixed
sooner or later, and the plaintiffs ultimately claimed to treat the defendants as in
repudiatory breach, and commenced this action. Leave to serve the writ out of jurisdiction was obtained under R.S.C., O. 11, r. 1(1) (d)(iii) on the basis that the contract sued upon was "by its terms, or by
implication, governed by English law".

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