Fulton Shipping Inc of Panama v. Globalia Business Travel S.A.U. (The New Flamenco) [2017] UKSC 43
When claiming damages for early termination of a time charter, Owners were not required to give Charterers credit for the difference between the sale value of the vessel at the time of repudiation in 2007 and the diminished value at the contractual end of the charterparty in 2009.
计算提前终止租约的损失，不必刨除船东2007年实际卖船的船价与假设2009年（租约正常终止时）卖船的船价之间的差价收益（期间船价下跌）。
The long-awaited Supreme Court decision in the New Flamenco was handed down on 28 June 2017, in a significant judgment on the measure of damages following a repudiatory breach and applicable principles of mitigation.
2017年6月28日，英国最高院作出业界等待已久的判决，该判决涉及如何计算毁约造成的损失及减损原则。
Background Facts 背景
The Charterers repudiated a time charter by redelivering the vessel early, in October 2007, rather than in November 2009. There was no available market for a replacement charterparty in October 2007 and the Owners sold the vessel for USD23.8m. The Owners claimed damages from the Charterers for loss of profit on time charter earnings across the remaining charter period of almost two years in the amount of €7,558,375.
2007年10月，租家毁约提前还船（正常应2009年11月还船）。在2007年10月，市场上没有合适的替代租约，船东因此以2380万美元的价格出售了船舶。之后船东向租船索赔约2 年的提前还船利润损失，共计7,558,375欧元。
The Charterers argued that the Owners had avoided a drop in the capital value of the vessel, because if there had been no early termination and the charterparty had continued until 2009, the vessel would in 2009 only have been worth USD7m. Accordingly, the Charterers said that the Owners had made a windfall of USD16.8m by selling the vessel in 2007 rather than 2009.
租家认为：由于提前还船，船东避免了船舶跌价损失；即假设租家没有提前还船，船东等到2009年租约正常结束后再卖船，船舶只值700万美元。租家认为，因是在2007年卖船（而不在2009年），船东意外获益1680万。
The Charterers said that they should be given credit for the benefit obtained by Owners against any liability to pay damages. This credit would wipe out the Owners’ claim for loss of profits. Accordingly, the Charterers argued that the Owners had in fact suffered no loss.
租家主张，在计算租家对船东的损失赔偿责任时，应考虑该卖船获益，应从船东的利润损失中刨除该获益。因此船东没有损失。
The path to the Supreme Court
上诉到英国最高院
The matter was initially referred to arbitration, where the Tribunal held in favour of the Charterers on the quantum issue, on the basis that the sale of the vessel was caused by the Charterers’ breach and there was therefore no reason why capital savings could not be taken into account when assessing the Owners’ loss.
本案先是仲裁。在赔偿金额上，仲裁庭支持租家的观点。仲裁庭认为租家违约是船东卖船的原因，因此在计算损失时应考虑船东的卖船获益。
Owners succeeded on appeal in the Commercial Court, which held that no credit should be given to the Charterers, because the benefit obtained by the Owners in realising the capital value of the vessel was not legally caused by the Charterers’ breach.
船东上诉到Commercial Court，Commercial Court认为不应考虑船东的卖船获益，原因是船东的卖船获益与租家违约之间没有因果关系。
The Charterers were then successful in the Court of Appeal, which held that where a claimant acquires a benefit as a result of doing something by way of mitigation arising out of the consequences of the breach and which is in the ordinary course of business, that benefit should normally be brought into account when assessing the claimant’s loss.
租家上诉到Court of Appeal，Court of Appeal认为：如索赔人在减损（减少对方违约所造成损失）的过程中获得收益，则在计算索赔人的损失时，应考虑该获益。
The Supreme Court decision
英国最高院判决
In giving the lead judgment, Lord Clarke (with whom all the other judges agreed) preferred the approach in the Commercial Court to that in the Court of Appeal, and allowed the Owners’ appeal on the basis that the alleged benefit was legally irrelevant: the fall in value of the vessel was not caused by the Charterers’ breach, or by a successful act of mitigation.
在判决中，Lord Clarke（其它法官全部同意）更倾向于Commercial Court的观点（与Court of Appeal的观点相比）；认为船东卖船获益在法律上是无关的，船价下跌并不是租家违约造成的，也不是减损造成的。
If a benefit is to be brought into account, it must have been caused by a breach of charterparty or by a successful act of mitigation. That was not the case here. The difference in value of the vessel was caused by the financial crash in 2008, rather than by the Charterers’ breach.
如要计入船东卖船获益，该获益必须是租家违约造成的，或是采取减损措施造成的。而本案并不是这样。船价的下跌是2008年金融危机造成的（而不是租家违约造成的）。
The ship sale was a type of transaction that the Owners were able to enter into irrespective of the Charterers’ breach of the charterparty. That breach may have provided an occasion which enabled the Owners to sell the vessel, but the decision to sell the vessel was legally independent of the Charterers’ breach. If the Charterers had not repudiated the charterparty, the Owners could have chosen to sell the vessel on terms which enabled the new owner to perform the remainder of the charterparty. In fact the Owners had themselves purchased the vessel during the currency of the charterparty.
不管租家是否违约，船东都可进行卖船交易。租家违约可能给船东卖船创造了时机，但船东卖船的决定在法律上是完全独立于租家违约的。如果租家没有毁约，船东可选择带租约卖船。事实上，本案的船东也是在本案租约的租约期内、带租约买入本案所涉船舶。
There was no reason to assume that a sale would have followed from the lawful delivery at the end of the charterparty, and, had the value of the vessel risen between 2007 and 2009, the Owners would not have been able to claim that positive difference in value as an additional head of claim.
另外，即便租约正常结束、租家正常还船，并不能推定还船后船东一定卖船。假设从2007年到2009年期间船价上涨，船东同样也不能将该上涨获益作为毁约损失的一项、向租家索赔。
The sale of the vessel was also not an act of mitigation, because it was incapable of reducing the loss of the Owners’ income stream. The only relevant loss was a loss of income, not a loss of capital.
卖船并不是减损措施，因为卖船并不能减少船东的收入（现金）流损失。船东的损失是收入损失，而不是资本（船价）损失。
Comment
评述
This decision brings a welcome degree of clarity to the law on the measure of loss and mitigation of damages in the context of repudiatory breach and termination of contracts.
该判决澄清了，在毁约、终止合同的情况下，如何计算损失和如何减损，受到了业界的欢迎。
In focusing on the causal link between the breach and the alleged benefit as being the key legal test, the Supreme Court appears to have put to one side the relevance of asking whether the alleged benefit is of the same kind as the loss caused by the breach.
在违约与（船东的）获益之间的因果关系问题上（关键的法律标准），英国最高院好像不会考虑（船东的）获益与违约所造成的损失是否是同种类型的。
This suggests that, if an innocent party obtains a windfall that is sufficiently caused by a breach, the innocent party would have to account for the benefit obtained even if the benefit was of a different kind to the loss caused by the breach, in determining the net loss suffered. Fluctuations in the sale and purchase market value of a vessel ought not be relevant to claims for loss of income under a time charter, so long as the decision to sell the vessel was not caused by the breach of the charterparty.
因此，如果无辜方的意外获益很大程度上是违约造成的，则计算无辜方净损失时应考虑该获益，即便该获益与违约损失属于不同种类。如果卖船的决定并不是违约引起的，则船价的市场浮动与（租约）违约损失索赔无关。
The Supreme Court has also outlined the boundaries of the law on mitigation. In indicating that the sale of the vessel was not an act of mitigation, the Supreme Court has arguably placed a limit on the ability of a party in repudiatory breach to point to post-termination actions taken by the innocent party to reduce the quantum of claims.
英国最高院还对减损进行了界定。本案认为卖船不是减损措施，说明英国最高院可能有意对，毁约方想以无辜方在合同终止后的行为为由、要求降低（无辜方的）索赔金额的做法，进行限制。
中欧商事合作协会 