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 法律及新造船合同 | 新造船合同及点评 |  提纲挈领读懂造船合同--造船合同第10章,卖方违约
 
提纲挈领读懂造船合同--造船合同第10章,卖方违约
2019-08-21

卖方违约并有权取消合同的条件

(1)卖方破产...(各种破产条款);
(2)所建造船舶未达到油耗、航速、载重吨、箱数(集装箱船)、蒸发率(气体船)...等;
(3)拖期超过弃船期;
(3)全损,并非卖方违约,但买方有全取消合同。

买方取消合同后享有的权力


(1)退款(含利息,或在全损的情况下不含利息);
(2)退还买方供应品或以等价金额返还。

一旦卖方返还买方支付的全部船款,双方的责任和义务全部解除。

重要提示

1. Article X - 1 (e) 关于保证指标


合同中关于建造船舶未达到保证指标以及拖期的描述是以具体数字列明,而并非指向合同的第一章节中的保证指标?如

(e) there occurs such occurrence which permits the BUYER to rexcind the Contract, being: (i) excessive delay in delivery of the VESSEL (Article III.1.(c)); or (ii) excessive deficiency of the speed of the VESSEL (Article III.2.(c)); or (iii) excessive fuel consumption of the Main Engine (Article III.3.(c)); or (ii) excessive deficiency of the deadweight of the VESSEL (Article III.4.(c)); or

解读:弃船对卖方会造成巨大损失,是否赋予买方弃船的权力在造船合同里至关重要。我们再看一下合同第一章节中有关保证指标的描述,不单是保证指标的数值,也涵盖了技术规格书中对保证指标的修正方法,和修正的过程。如果将弃船的条件简单的指向第一章节的保证指标条款,是否意味修正方法的错误或是修正过程的错误也将导致弃船?所以该条款必须明确,弃船是保证的指标没有达到,其中隐含的意思是卖方有权对不满足的指标进行修正。

2. Article X - 2 仲裁止付

合同中有段看似废话的描述

Thereupon the BUYER may, upon 30 days written notice to the SELLER, in its sole discretion, rescind and terminate this Contract. The SELLER shall refund in United States dollars with sixty (60) days to the BUYER the full amount of all sums paid by the BUYER to the SELLER on account of the VESSEL, unless the SELLER disputes the BUYER"s cancellation and/or rescission by instituting arbitration in accordance with Article XIII. If the BUYER"s cancellation or rescission of this Contract is disputed by the SELLER by instituting arbitration as aforesaid, then no refund shall be made by the SELLER, and the BUYER shall not be entitled to demand repayment from the Refund Guarantor under relevant Refund Guarantee until the arbitration award between the BUYER and the SELLER which shall be in favour of the BUYER, declaring the BUYER"s cancellation and/or rescission justified, is made and delivered to the SELLER by the arbitration tribunal. In the event of the SELLER is obligated to make refund, the SELLER shall pay the BUYER interest in United States Dollars at the rate of --- percent (-%), if the cancellation or rescission of the Contract is exercised by the BUYER in accordance with the provision of Article III 1(c), 2(c), 3(c), or 4(c) hereof, on the amount required herein to be refunded to the BUYER computed from the respective dates when such sums were received by ____bank, _____Branch or any such other bank account as nominated by the SELLER pursuant to Article II 4(b), 4(c), 4(d) or 4(e) from the BUYER to the date of remittance by telegraphic transfer of such refund to the BUYER by the SELLER, provided, however, that if the said rescission by the BUYER is made under the provisions of Paragraph 3 of Article VIII or Article XII. 2(b)(ii), then in such event the SELLER shall not be required to pay any interest.

上段文字中标红的文字翻译如下:

“如果卖方对买方对本合同的取消或解存有争议,并提交仲裁,则卖方不予退款,买方也无权要求还款担保人在相关还款保证下进行还款,直至仲裁裁决为买方获胜,并宣布买方的取消和/或撤销正当的。”

该条款称为仲裁止付,同样的描述也出现在合同第一章保函的开立和保函文字中,如果没有这段描述,将导致卖方开具的银行还款保函变成“见索即付”的无条件保函。

3. 一旦卖方返还买方支付的全部船款,双方的责任和义务全部解除

买方如果主张买走现有状态的船舶,建议合同中止并另行处理。但在某些合同文本中,特别是海工合同也出现买方有权购买未完成建造的船舶的条款,如下供参考:

Effect of Termination

  1. In the event this Contract is terminated by Buyer under sub-article 1 of this Article, the Buyer shall have the right, at its sole discretion, to decline to accept the Vessel in its then-current condition and require the Seller to, and the Seller shall, promptly return to the Buyer any and all moneys received from the Buyer under this Contract; or
  2. In the event this Contract is terminated by Buyer under sub-article 1 of this Article 13, and the Buyer chooses, at its sole discretion, to accept the Vessel in its then current condition, then:
    (a)    the Buyer shall promptly pay the Seller all unpaid sums due and owing to Seller under this Contract as of the date of termination and the unpaid portion of the Contract Price for the percentage of value of the Work performed (including the cost of consumables, materials and equipment purchased by Seller for the Work) before the date of termination with respect to the total value of Work;
    (b)    If sub-article 1(a) of this Article is fulfilled, the Buyer shall be entitled to:
    (i)    An assignment of title by Seller, free and clear of all liens, encumbrances and claims of any kind, in and to the Vessel, including all equipment, raw material, goods and appurtenances purchased by Seller for incorporation on or into the Vessel, and
    (ii)    Claim from the Seller an amount equal to the paid portion of the Contract Price in excess of the portion of the Contract Price attributable to the percentage value of the Work performed (including the cost of consumables, materials and equipment purchased by Seller for the Work) before the date of termination with respect to the total value of Work, and
  3. In the event that a dispute arises between the Parties as to the sums due to the Seller upon termination, the Buyer shall pay all undisputed amounts to the Seller and the disputed amounts shall be paid into a joint escrow account in the name of the Seller and Buyer with the Buyer’s bank to be disbursed in accordance with any mutual settlement being achieved between the Parties or in accordance with the directions of any arbitration award or final judgment, as the case may be, granted.
  4. Upon prompt payment of all sums due to the Seller on termination (or, where applicable, payment of all undisputed sums to the Seller and any disputed sums to the escrow account), the Buyer shall take possession of the Vessel under construction (including all equipment, raw material, goods and appurtenances purchased by Seller for incorporation on or into the Vessel) and all OFE at the Shipyard and move the same out of the Shipyard within thirty (30) days.
  5. In the event that the Buyer fails to pay all sums due to the Seller on termination (or, where applicable, payment of all undisputed sums to the Seller and provision of the requisite security to the Seller) within sixty (60) days  after the date of termination of the Contract, the Seller shall be entitled thereafter to sell (without any liability for any loss):
    (a)    The Vessel under construction (including all equipment, raw material, goods and appurtenances purchased by Seller for incorporation on or into the Vessel) in its incomplete state or, alternatively, at the Seller’s discretion,
    (b)    The Vessel after the Seller has completed the construction of the Vessel.
  6. In the event of sale of the Vessel:
    (a)    In its incomplete state pursuant to sub-article 3(4) above, the proceeds of the sale received by the Seller shall be applied firstly to payment of all expenses attending such sale, then to the payment of all sums due to the Seller on termination; or
    (b)    In its completed state pursuant to sub-article 3(4) above, the proceeds of the sale received by the Seller shall be applied firstly to payment of all expenses attending such sale, and then to payment of all unpaid installments of the Contract Price.
    In either of the above events of sale, if the proceeds of sale exceeds the total of amounts to which such proceeds are to be applied as aforesaid, the Seller shall promptly pay the excess to the Buyer without interest, provided however, that the amount of such payment to the Buyer shall in no event exceed the total amount of installments already paid by the Buyer and the cost of any OFE provided that such OFE is either installed on the Vessel that is sold, whether in its completed or incomplete state or sold separately by the Seller in the event of the Vessel being sold in its incomplete state and provided further that in no event shall such cost exceed the price for all the OFE stated in Article 15 (Insurance).

4. 关于买方供应品的处理

对买方供应品,标准造船合同中有多处描述,如买方违约,保险等章节。但如果买方根据合同取消合同,对于买方供应品的处理,合同中没有相关描述。通常的处理为,如买方供应品可以退还给买方,则退还,如无法退还,则根据实际购买的价格退款给买方。

如果买方对此章节提出质疑,可以考虑将下述文字加入第2小节:

In the event of cancellation, rejection and rescission of the contract by the Buyer, the Seller should return all the BUYER’s supplies, or, if this is not reasonably practicable, refund the cost thereof to the BUYER at the cost invoiced to the BUYER.

 
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