Sie sind auf Seite 1von 29

Shipbuilding contracts and

related ship finance issues

Chairman:
Ian Gaunt Hon. Secretary, LMAA
Panellists:
Alun Hatfield - Clarksons Financial Services
Michael Stockwood Ince & Co
Simon Curtis - Curtis Davis Garrard LLP

Wednesday 28th April 2010

International House, 1 St Katharines Way,


London, E1W 1UN
LSLC - MARITIME BUSINESS FORUM
International House, 2nd Floor,
1 St Katharines Way, London, E1W 1UN
Tel: 020 7063 9737 ~ E-mail: shipping @shippinglbc.com ~ Fax: 020 7481 2149
Chairmans Tel: 020 7063 9736 ~ Chairmans E-mail: asheppard@shippinglbc.com
Web-site: www.london-shipping-law.com

Issues for discussion:

BIMCO standard shipbuilding contract

Governing law, forum and jurisdiction issues

Impact of West Tankers and EU Reg 44/2001

Impact of Cross border Insolvency Regulations

Refund Guarantee deficiencies

CA decision Stocznia v Gearbulk Holdings

Impact of recent developments on the financing of newbuildings

PART A
Common Issues in Shipbuilding Contract Arbitrations
Ian Gaunt

PART B
Ship Finance A changing environment
Alun Hatfield

PART C
Damages and determination of Shipbuilding Contracts
Gearbulk v Stocznia Gdynia Revisited
Michael Stockwood

PART D
Enforcing the refund guarantee -Practical problems
Simon Curtis

PART E
CURRICULA VITAE

PART A
Common Issues in Shipbuilding Contract Arbitrations
Ian Gaunt

London Shipping Law Centre 28 April 2010

Common Issues in Shipbuilding Contract Arbitrations


Ian Gaunt MA (Cantab), FCIArb, DiplCArb, Hon Secretary LMAA

Summary:

The boom in shipbuilding orders for all classes of ships in the period 20032008 has been followed by an equally dramatic fall in freight rates in late
2008 and the termination of many shipbuilding contracts. This has inevitably
resulted in a large number of references to arbitration of shipbuilding
disputes, particularly in 2009. Most of the arbitrations in this field involving
international contracts are subject to English law and conducted in London,
many of them under the Terms of the London Maritime Arbitrators
Association.
In the arbitration proceedings preliminary issues often arise as to the correct
interpretation of poorly worded arbitration clauses.
Common features of disputes include:

alleged failures to meet deadlines for stages of construction


prescribed by the contract

allegations that delays are, or are not, excusable as force majeure


or permissible delay

allegations that ships when tendered do not comply with the


technical specification, and disputes as to the materiality of alleged
discrepancies

allegations that parties have made representations about their


intentions with regard to the exercise of rights of cancellation, which
have allegedly been relied on by the other party to their detriment.

In the majority of cases the disputes also involve financial instruments such
as refund guarantees, and their interpretation. Can a claim be made for a
refund of instalments paid, and therefore under a refund guarantee, and
also for damages more generally? This issue has recently been considered
by the English Court of Appeal in Stocznia Gdynia SA v Gearbulk Holdings
Ltd1.
Issues relating to cross border insolvency and jurisdiction often need to be
considered. This is particularly relevant to the possibility of a stay of
proceedings and to the issue of security for costs.
Finally, the question of enforcement of an award will be crucial. Where
does the unsuccessful party have assets and can the courts of the country
where those assets are located be relied on to enforce the award? This is
particularly the case in China where there is so far limited experience of
enforcement of arbitration awards.

Shipbuilding disputes: A typical scenario

Owner terminates/rescinds/cancels contract for:


1. Delay
2. Non compliance with specification.

Builder gives notice of arbitration and appoints arbitrator but takes no


further action: blocks claim under refund guarantee (maybe).

Owner appoints arbitrator and serves claim submissions to accelerate


recovery under refund guarantee.

Shipyard tries to sell ship to limit damage and generate cash

Forms of shipbuilding contract and dispute resolution

For orders placed in shipyards in Japan, Korea and China various more or
less standard forms of shipbuilding contracts have developed and it has
been usual for owners to contract on these terms, but with modifications
introduced as a result of individual negotiations. In Japan, the starting point
for most contracts is likely to be the SAJ form which provides for the validity
and interpretation of the contract to be governed by the laws of the
country where the vessel is built and disputes to be subject to the rules of
The Japan Shipping Exchange2. In Korea and China various basic forms
have been used, often subject to a good deal of modification through
negotiation. Many foreign purchasers from Korean, Chinese or Japanese
shipyards will wish to require the contract to be governed by the law of a
neutral jurisdiction and for disputes to be resolved in a neutral forum.
Many, indeed probably a substantial majority of, international shipbuilding
contracts contain clauses including English law as the express law of the
contract references to English arbitration, whether or not explicitly to the
LMAA Terms. The advantages of arbitration are of course well known, in
particular confidentiality, certainty (particularly where appeals to the courts
are restricted or excluded) and the ability to enforce an award in any of
the 150+ countries which are parties to the 1958 United Nations Convention
on the Recognition and Enforcement of Foreign Arbitral Awards (the New
York Convention).

Defects in arbitration clauses

In dealing with shipbuilding disputes referred to arbitration, it is remarkable


to discover how many arbitration clauses are in some way defective. Whilst
the law and jurisdiction clauses may be the last item of a shipbuilding
contract to be focussed on by the parties and their lawyers, the proper

drafting of these clauses can often avoid unnecessary preliminary disputes


as to the proper seat of the arbitration and the way in which the arbitration
tribunal is to be constituted and/or to conduct its proceedings. It is quite
rare to find an explicit reference to the seat of the arbitration
notwithstanding the fact that this will determine which courts will have the
power to supervise the proceedings. It is quite common to find references
to arbitral bodies which dont exist or at least to find their names misstated.
The procedures for the appointment of arbitrators may be unworkable and
frequently there are references to umpires rather than arbitrators where it is
clear that those drafting the provision do not really understand the
difference.

The point is that it is worth the parties and their lawyers making sure that
their arbitration agreement is really workable, that the seat has been
identified and that a suitable set of arbitral rules has been properly referred
to - whether it be the Terms of the LMAA or other body which is correctly
identified. The parties should also give consideration whether they want to
retain or exclude rights of appeal to the courts and what express language
they need to include to achieve the desired result.

Cancellation for Delay

All shipbuilding contracts will include an express right of cancellation (often


expressed as termination or rescission usually meaning the same thing)
which the buyer can exercise if the ship is not tendered for delivery within a
designated period after the scheduled contractual delivery date, as
extended by permissible delays.

For this purpose, in an English law

contract, permissible delays and the circumstances in which the shipyard


can rely on them, need to be spelled out in detail as there is no general
concept of force majeure under English law (unlike the laws of most

continental European countries and others whose civil law is based on such
systems). The SAJ form of contract is quite explicit in describing permissible
delays and sets a period of 210 days, excluding permissible delays, as the
limit after which the buyer can rescind the contract if the ship has not
been tendered for delivery. The most significant delays are likely to be the
result of strikes, fires, crane damage, design defects or catastrophes such as
earthquakes. They may however also be the result of poor planning or a
shipyard taking on more orders than it is really able to fulfil or be the result of
defects in components supplied by subcontractors or delays in delivery of
subcontracted components which lie on the critical path for construction.
Where the cancellation clause does allow the shipyard to take permissible
delay into account, a dispute over the buyers right to cancel is likely to
involve one or both of the following questions:

Is the delay is really within the strict terms of the permissible delay
definition and has any relevant prescribed notification has been
given by the shipyard?

Has the delay alleged actually been caused by the permissible delay
or by something else.

Many, indeed in my recent experience most, international shipbuilding


contracts now include a further provision for an ultimate drop dead
date3. This means that if the ship is delayed beyond a certain point (say, 365
days) after the scheduled contractual delivery date, the buyer may cancel
the contract even if the delay is wholly or partly caused by permissible
delay.
A third type of clause dealing with delay is found in many contracts This
seeks to give the buyer greater control over the construction process in the
form of a right of cancellation if the keel has not been laid or another major
milestone reached by a given date or, more generally, if progress on the
construction of the ship is halted for a given period. Failure to meet such
interim dates may give the buyer a warning that the ship will not finally be

tendered by the scheduled delivery date and an opportunity to take


action without having to wait until the scheduled delivery date before
giving notice of cancellation.
The last provision I would draw attention to in connection with delays is the
right contained in some contracts for the shipyard to put the buyer to an
election as to the exercise of its right of cancellation. That is, if the buyer is
entitled to exercise a right of cancellation but simply does not do so,
leaving the shipyard in the dark as to the buyers intention, the shipyard can
give notice to the buyer nominating an alternative delivery date and
forcing the buyer either to accept the later date as a substitute contractual
date, or to exercise its right of cancellation.4 In principle, this provision could
provide the shipyard in delay with an opportunity to avoid an uncertain
situation, but it effectively requires the shipyard to admit that the buyer has
an accrued right of cancellation, something which shipyards in this situation
have been understandably reluctant to do.
Where a buyer has been equivocal in its dealings with a shipyard in a case
where a right of cancellation may have arisen, the shipyard may allege
that the buyers conduct amounts to a promissory estoppel, namely that
the buyer has made an express or implied representation to the effect that
it will not exercise the right and that the shipyard has acted on such
representation to its detriment. The decision on such arguments will of
course depend on the arbitrators evaluation of the facts in each case.

Failure to meet the contractual specification

In English law, shipbuilding contracts are contracts for the sale of goods by
description within section 13 of the Sale of Goods Act 1979. This imports a
condition that the goods tendered will correspond with the description. The
description is partly contained in the shipbuilding contract (particularly
details

as

to

main

dimensions,

speed,

deadweight,

draught,

fuel

consumption etc) but most of the description will be in the specification


and plans. The buyer will monitor the progress of construction through its site
supervisors but does not normally take contractual responsibility for the
compliance of the finished product with the contractual description. The
contract will invariably contain provisions for liquidated damages to be
paid (often by way of a reduction of the price on delivery) for deficiencies
in designated aspects of the description - notably speed, deadweight and
fuel consumption and provision for the buyer to have the right to cancel if
the specified parameters are not met by more than a particular margin. So
much is relatively clear.

The question however often arises whether the

buyer may cancel the contract for a failure to comply with section 13 of the
Sale of Goods Act or otherwise if the ship on delivery does not meet other
aspects of the contract description, for example if the ship is subject to
vibration above the specified level.

Historically the English courts adopted a very strict approach to the


condition as to compliance with description, such that even minor noncompliances could be invoked as a justification for termination of the
contract. In the last 30 years however, the courts have inclined to take a
less strict approach, holding that the contractual description for these
purposes should be confined to terms which, viewed objectively, are of
commercial

significance

to

the

purchaser5.

As

compliance

with

description is frequently in dispute in shipbuilding cases, arbitrators may


quite often have to decide the question whether a particular discrepancy is
of commercial significance to the purchaser and, in cases where the
arbitrators are commercial men (or women), arbitrators assessment.

It should be mentioned that it is not unusual for the statutory implied


conditions to be expressly excluded in shipbuilding contracts governed by
English law. In cases where the buyer has purported to cancel the contract,

the decision for the arbitrators would be not whether the condition as to
compliance with description had been breached but whether the failure to
comply with the obligation to build and deliver the ship in accordance with
the specification amounted to a repudiatory breach of contract by the
shipyard. Again this will depend on the arbitrators evaluation of the
significance of the breach. The comments made above in relation to the
qualification of arbitrators to make such a judgement also apply.

Can a buyer claim both a refund of instalments paid and damages at


large?

This question came for decision recently in the widely reported case of
Stocznia Gdynia SA v Gearbulk Holdings Ltd (an appeal which, incidentally,
fully upheld the decision of the sole arbitrator). The case involved identical
shipbuilding contracts for three ships. The contracts included provisions
entitling the buyer to terminate the contracts if the delay in delivery of a
particular ship extended beyond a given cancelling date. In the event of
termination, the buyer had the right to receive repayment of the
instalments of the contract price already paid plus interest, which was
guaranteed by a third party refund guarantee. The contracts also included
a provision that the shipyard should not be liable for any other
compensation for damages sustained by reason of delay. The buyer
terminated each of the contracts for delay and claimed payment under
the refund guarantees. The buyer however also claimed damages against
the shipyard for repudiatory breach of contract by reason of the delay.
The arbitrator held that the yard had repudiated the contracts, that the
terms of the contracts did not preclude the buyer from treating the
contracts as discharged for repudiatory breach nor from recovering
damages for loss of bargain and that the termination letters did not have
the effect of affirming the contracts and therefore abandoning common

law rights. The shipyard appealed. The judge at first instance found that
there was a repudiatory breach of contract but that the buyer was
precluded from claiming damages at common law by virtue of it having
effectively affirmed the contract and recovered monies together with
interest from the refund guarantor in accordance with the provisions of the
contracts. The Court of Appeal restored the decision of the arbitrator.
Moore-Bick LJ said as follows:
Whenever one party to a contact is given the right to terminate it in the event of a
breach by the other, it is necessary to examine carefully what the parties were intending to
achieve and in particular what importance they intended to attach to the underlying
obligation and the nature of the breach. The answer will turn on the language of the
clause in question understood in the context of the contract as a whole and its
commercial background
The primary purpose of [Article 10] in the present case is to provide an agreed measure of
compensation for breaches of contract by way of delay in delivery and deficiencies in
capacity and performance which, although important, do not go to the root of the
contract. For these the parties have agreed the payment of liquidated damages which
are to be deducted from the final instalment of the price and to that extent their
agreement displaces the general law, at least as regards the measure of damages
recoverable for a breach of that kind. However they have also agreed that there comes a
point at which the delay or deficiency is so serious that it should entitle [the buyer] to
terminate the contract. In my view they must be taken to have agreed that at that point
the breach is to be treated as going to the root of the contract. In those circumstances the
right to terminate the contract cannot sensibly be understood as anything other than
embodying the parties agreement that [the buyer] has the right to treat the contract as
repudiated withthe usual consequences.In my view it is wrong to treat the right to
terminate in accordance with the terms of the contract as different in substance from the
right to treat the contract as discharged by reason of repudiation at common law. In those
cases where the contract gives a right of termination they are in effect one and the same.

The court effectively went to on to decide that as a matter of construction


the exclusion clause did not mean that the buyer had given up its right to
claim damages at large as well as claiming a refund of instalments and
interest.

I suspect that many shipyards and their lawyers will be surprised by this
decision. However, it should be borne in mind that the court did not rule out
the possibility of excluding the right to claim damages at large in the case
of a repudiatory breach of contract as a matter of principle. What it did
decide was that very clear language would be needed to reach the
conclusion that a buyer had given up this right. The result is that the wording
of the relevant contract will need to be considered and construed by
arbitrators or a court in reaching the appropriate decision as to whether an
award of damages at large would be appropriate (as well as evaluating
the circumstances in deciding whether there has been a repudiatory
breach).
A final point to note on this case is that the court found that the termination
of the contract under the specific termination provision was capable of
operating as an acceptance of the repudiatory breach, even though it
was not expressed in those terms:
..where the contract provides a right to terminate which corresponds to a right
under the general law no election is necessary. In such cases it is sufficient for the injured
party simply to make it clear that he is treating the contract as dischargedIf he gives a
bad reason for doing so, his action is nevertheless effective if the circumstances support
it..6

Insolvency and the Cross Border Insolvency Regulations

It is accepted in most jurisdictions, as a consequence of Article II.1 and 3 of


the New York Convention, that arbitration agreements will be given effect
to, and that court proceedings in the same matter will be stayed in favour
of the resolution of the dispute by arbitration. However, where one of the
parties to an arbitration agreement is insolvent and obtains protection
under local insolvency laws, it will be open to the foreign representative of
the insolvent party to seek the stay of arbitration proceedings pending in
England under the English Cross Border Insolvency Regulations 2006
(CBIR)7. Whilst these issues are not confined to shipbuilding disputes, CBIR

may have significant consequences in such cases, particularly where the


insolvent party is the respondent in the proceedings.

In a recent English case8, Korean shipowner and operator Samsun Logix


Corporation (Samsun), having run into serious financial difficulties,
petitioned the Seoul Central District Court for protection against its creditors
under the Korean rehabilitation legislation. The Korean Court granted a stay
in respect of proceedings against Samsun. The Korean Court appointed a
Receiver of Samsun and applied to the English High Court for an order to
stay proceedings against Samsun under the CBIR. The English High Court
granted the stay which took immediate effect and prevented any creditor
from, for example, obtaining an arbitration award against Samsun, let alone
enforcing such award.

The English Courts have long recognised and assisted foreign receivers or
other duly appointed insolvency officials from other jurisdictions at Common
Law as mentioned in Galbraith v. Grimshaw9; indeed S. 426 of the
Insolvency Act 1986 gave specific recognition in that respect to a number
of former Commonwealth countries. The CBIR however goes much further
and enables the English High Court to assist foreign receivers and other
insolvency officials from any jurisdiction.

Security for costs


In English arbitration proceedings it will be open to the respondent to apply
for security for its costs in defending the proceedings. This however may
lead also to an application by the claimant for an order for security for the
costs of any counterclaim which the respondent may have brought. Not
infrequently, the possibility of an order for security for costs will result in a
good deal of shadow boxing between the parties to establish which is the
true claimant in the proceedings. This may not necessarily be the party

which has given notice of arbitration. It may also involve an examination of


whether the respondents counterclaim raises different issues or whether it is
really just the flip side of the claimants claim.

Claims under refund guarantees


A typical scenario in the current environment is for a shipyard which is in
dispute with a buyer over the delivery of a ship to first give notice of
arbitration. In many cases this will deny the buyer the opportunity to obtain
immediate payment under a refund guarantee until an arbitration award
has been issued. Having thus deflected the claim under the refund
guarantee (and its obligation to reimburse the issuer), the shipyard may
have little incentive to pursue the claim with any vigour. The buyer on the
other hand, will be keen to recover its investment if it is confident that it can
obtain an award in its favour confirming its entitlement to terminate the
shipbuilding contract for delay, non-conformity with contract description or
otherwise.
There is frequently some disconnect between proceedings for recovery
under refund guarantees and arbitration proceedings under the related
shipbuilding contract. Even if governed by the same law as the related
shipbuilding contract, refund guarantees are invariably subject to the
jurisdiction of the courts, resulting in some cases in the expense of parallel
proceedings in court and in arbitration, each of which turn on the same
issues.

Enforcement
Like a number of the other issues discussed above, enforcement problems
are not confined to shipbuilding contract disputes but the fact that a high
percentage of the worlds ships are built in one of Japan, Korea or China
makes it important, from the buyers perspective, to focus on enforcement
in those countries. Many buyers may take the view that as long as their

downpayments are protected by a refund guarantee, they do not need to


worry further about possible enforcement issues in the jurisdiction where
their partner shipyard is located. This may not be the case for four possible
reasons:

If an arbitration award is needed to trigger payment under the refund


guarantee, the course of the arbitration proceedings may be
affected by local insolvency protection proceedings in the jurisdiction
of the shipyard which may lead to a stay of the arbitration
proceedings in the jurisdiction of the seat (see above).

The decision in Stocznia Gdynia SA v Gearbulk Holdings Ltd (above)


highlights the possibility of the buyer bringing proceedings to recover
damages at large for repudiatory breach of contract. Such a claim
would not be guaranteed by a customary form of refund guarantee.
An award of such damages would need to be enforced against the
shipyards assets, most probably in the jurisdiction where the shipyard
is located.

The shipbuilding contract may include a right to take possession of


the uncompleted ship and have it completed in another shipyard.
Again an award in this respect would need to be enforced in the
jurisdiction where the shipyard is located. In such cases local
insolvency or creditor/debtor protection laws would almost inevitably
also need to be taken into account.

If the bank or other institution issuing the refund guarantee has assets
primarily or exclusively in the same jurisdiction as the shipyard,
enforcement proceedings may need to be taken against the issuer in
that jurisdiction and issues such as exchange controls may need to
be taken into account. Whilst this is not a question of the
enforcement of an award as such, the award against the shipyard
and its recognition will undoubtedly be an issue in obtaining payment
under the refund guarantee.

The position of the shipyard seeking to enforce an award against a buyer


will be different, depending of course on the location of assets of the buyer
or a guarantor against which enforcement may be sought. The easiest
course may be to arrest a ship owned or controlled by the buyer but, unless
the buyer is itself the owner of the relevant ship, it will be necessary to
consider the local laws regarding sistership arrests in the jurisdiction where
enforcement is sought. Again too, creditor/debtor protection laws in the
state where the central management of the shipowning group is located
may have an impact on the ability of the shipyard to enforce the award in
its favour.

[2009] Lloyds Rep 461


The Rules of Maritime Arbitration of the Japan Shipping Exchange Inc. These are set out in Curtis
The Law of Shipbuilding Contracts 2nd ed. at Appendix E, p327 ff
3
This right is not included in the SAJ form: see Article VIII.
4
SAJ form Article VIII.4.
5
Reardon Smith Line Ltd v. Yngvar Hansen-Tangen, The Diana Prosperity [1976] 2 Lloydss Rep. 621
6
Moore-Bick LJ at para 44
7
SI 2006/1030
8
Samsun Logix Corporation v DEF [2009] EWCH 576 Ch
2

[1910] 1 KB 339,

PART B
Ship Finance A changing environment
Alun Hatfield

Ship Finance A Changing Environment

28th April 2010


www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Disclaimer
THIS PRESENTATION IS CONFIDENTIAL AND IS SOLELY FOR THE USE OF THE RECEPIENT . NEITHER THE WHOLE NOR ANY PART OF THE
INFORMATION CONTAINED IN THE PRESENTATION MAY BE DISCLOSED TO, OR USED OR RELIED UPON BY, ANY OTHER PERSON OR USED
FOR ANY OTHER PURPOSE WITHOUT THE PRIOR WRITTEN CONSENT OF H. CLARKSON & CO. LTD (CLARKSONS).
THE INFORMATION CONTAINED IN THE PRESENTATION, AND UPON WHICH THE PRESENTATION IS BASED, HAS BEEN DERIVED FROM
PUBLICLY AVAILABLE INFORMATION. NONE OF THE INFORMATION ON WHICH THE PRESENTATION IS BASED HAS BEEN INDEPENDENTLY
VERIFIED BY ANY MEMBER OF CLARKSONS NOR ANY OF ITS CONNECTED PERSONS. ACCORDINGLY, NO MEMBER OF CLARKSONS NOR ANY
OF ITS CONNECTED PERSONS MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OF
THE INFORMATION CONTAINED IN THE PRESENTATION, OR ON WHICH THE PRESENTATION IS BASED, OR THAT THIS INFORMATION
REMAINS UNCHANGED AFTER THE ISSUE OF THE PRESENTATION.
THE PRESENTATION IS NOT TO BE CONSTRUED AS CARRYING THE ENDORSEMENT OF CLARKSONS OR ANY OF ITS CONNECTED PERSONS.
CONSEQUENTLY, NEITHER CLARKSONS NOR ANY OF ITS CONNECTED PERSONS CAN BE HELD LIABLE TO ANY PERSON TO WHOM
INFORMATION DERIVED FROM THE PRESENTATION IS MADE AVAILABLE FOR THE ACCURACY OF THE INFORMATION CONTAINED IN IT.
THE PRESENTATION IS NOT INTENDED TO RECOMMEND ANY STRATEGIC DECISION BY THE COMPANY AND SHOULD NOT BE CONSIDERED
AS A RECOMMENDATION SUPPORTING ANY OF THE OPTIONS DISCUSSED HEREIN BYANY MEMBER OF CLARKSONS OR ANY OF ITS
CONNECTED PERSONS TO ANY RECIPIENT OF THE INFORMATION. EACH PERSON TO WHOM THE INFORMATION IS MADE AVAILABLE MUST
MAKE THEIR OWN INDEPENDENT ASSESSMENT OF THE OPTIONS AVAILABLE.
NOTHING IN THE PRESENTATION IS, OR SHOULD BE RELIED UPON AS, A PROMISE OR REPRESENTATION AS TO THE FUTURE.
IN THIS NOTICE, CONNECTED PERSONS MEANS, IN RELATION TO CLARKSONS, ITS HOLDING COMPANY, THE SHAREHOLDERS,
SUBSIDIARIES AND SUBSIDIARY UNDERTAKINGS OF ITS HOLDING COMPANY AND THE RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS OF EACH OF THEM
H. CLARKSON & CO. LTD
ST. MAGNUS HOUSE, 3 LOWER THAMES STREET, LONDON, EC3R 6HE
TELEPHONE +44 (0) 207-334-5420

28th April 2010


www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

A Changed Picture
- Its not what it used to be

28th April 2010


www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Syndicated Shipping Loans 2007

Source : Dealogic
28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Syndicated Shipping Loans 2008

Source : Dealogic
28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Syndicated Shipping Loans 2009

Source : Dealogic
28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Syndicated Shipping Loans Q1 2010

Source : Dealogic
28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Global Shipping Loan Volumes

Q1 2010

Q4 2009

Q3 2009

Q2 2009

Q1 2009

Q4 2008

Q3 2008

Q2 2008

Q1 2008

-100%
Q4 2007

5
Q3 2007

-70%

Q2 2007

10

Q1 2007

-40%

Q4 2006

15

Q3 2006

-10%

Q2 2006

20

Q1 2006

20%

Q4 2005

25

Q3 2005

50%

Q2 2005

30

% change (y-o-y)

% change
80%

Q1 2005

$ billion

Global Shipping Volumes


35

Source : Dealogic
28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Global Shipping Volumes vs. New Money Raised


Global Shipping Volumes

New money Raised

35
30

20
15
10
5

Q1 2010

Q4 2009

Q3 2009

Q2 2009

Q1 2009

Q4 2008

Q3 2008

Q2 2008

Q1 2008

Q4 2007

Q3 2007

Q2 2007

Q1 2007

Q4 2006

Q3 2006

Q2 2006

Q1 2006

Q4 2005

Q3 2005

Q2 2005

0
Q1 2005

$ billion

25

Source : Dealogic
28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Potential Problems
Ahead
Value & Finance Gap

28th April 2010


www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Clarksea Index
60

40
30
20
10
Jan-10

Jan-09

Jan-08

Jan-07

Jan-06

Jan-05

Jan-04

Jan-03

Jan-02

Jan-01

Jan-00

Jan-99

Jan-98

28th April 2010


www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Value Gap Volumes


no. of orders with VG

Value Gap

3,000

40,000

2,500

35,000

2,000

30,000

$32,788
$29,695

1,500

25,000

1,000

$million

no of units

$000/day

50

20,000

$21,414
500

15,000

10,000
bulk carrier

container ship

tanker

28th April 2010


www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Finance Gap Volumes


no. of orders with FG

Finance Gap

3,500

70,000

3,000

60,000
50,000

$53,968
2,000

40,000
1,500
30,000

$33,555

1,000

$million

no of ships

2,500

$29,983
500
0

20,000
10,000

bulk carrier

container ship

tanker

28th April 2010


www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Total Orderbook Finance Gap & Values


Delivery
year

Total no of
contracts

Total
contracted
value

Current
Market
Value

Contracts
with FG

Finance
Gap

2010

2,704

149,991

112,544

2,699

56,232

2011

1,636

107,334

77,761

1,636

41,620

2012

625

30,092

625

16,299

2013

110

7,309

5,854

110

2,555

2014

17

1,730

1,120

17

737

41,794

2015

132

72

63

Total

5,093

308,289

227,443

5,088

117,506

Note: value in $million


28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Bulk Carrier Orderbook Value Gap & Values


Delivery
year

Total no
of
contracts

Total
contracted
value

Current
Market
Value

No of
contracts
with Value
Gap

Value
Gap

% of
contracts
with VG

2010

1,531

76,211

65,021

1,215

12,624

79.4%

2011

1,047

53,912

44,523

877

10,113

83.8%

2012

451

25,308

20,456

369

5,348

81.8%

2013

87

5,578

4,492

68

1,266

78.2%

2014

11

1,098

754

11

344

100.0%

Total

3,127

162,106

135,246

2,540

29,695

81.2%

Note: value in $million


28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Containership Orderbook Value Gap & Values

Delivery
year

Total no
of
contracts

Total
contracted
value

Current
Market
Value

No of
contracts
with Value
Gap

Value
Gap

% of
contracts
with VG

2010

468

33,557

17,916

467

15,641

99.8%

2011

217

23,142

11,869

216

11,273

99.5%

2012

113

11,444

5,801

113

5,643

100%

2013

103

57

46

100%

2014

267

143

124

100%

2015

132

72

61

100%

Total

803

68,644

35,856

801

32,788

99.8%

Note: value in $million


28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Tanker Orderbook Value Gap & Values


Delivery
year

Total no
of
contracts

Total
contracted
value

Current
Market
Value

No of
contracts
with
Value Gap

Value Gap

% of
contracts
with VG

2010

705

40,223

29,607

689

10,650

97.7%

2011

372

30,280

21,370

354

9,023

95.2%

2012

61

5,042

3,836

56

1,237

91.8%

2013

21

1,629

1,306

15

362

71.4%

2014

364

223

142

100%

Total

1,163

77,538

56,341

1,118

21,414

96.1%

Note: value in $million


28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Export Credit Agencies

28th April 2010


www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Banks/Governments in Asia support shipping


Through this crisis there has been a shift eastwards in the centre of ship finance as the traditional European
banks continue to struggle. The countries that dominate shipbuilding and/or equipment supply have ensured
that strategic steps have been taken to support both shipbuilding and shipping.
Recent Announcements
Korea Exim and KEIC to provide US$ 7.6bln to shipbuilders
Korean government provides an extra US$ 9.2bln for loans to domestic and foreign ship owners
Korea Asset Management and KDB are planning distress funds up to US$ 4.8 bln for ship acquisitions
China Exim Bank has provided US$ 5bln in newbuilding loans to support the Chinese shipbuilding industry
Malaysian government has a US$ 750m budget for a shipping fund to assist shipping companies to acquire
modern tonnage and upgrade shipyards
The Export Credit Agencies involved China Exim/Sinosure, Korea Exim/KEIC, GIEK/Eksportfinans, ECGD, SACE,
COFACE and Euler Hermes. Singapore currently establishing a Singapore Exim.

28th April 2010


www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Billions of Chinese Lending


CHINESE banks have quietly lent billions of dollars to blue chip western shipowners since the banking crisis broke in September 2008 and traditional
home turf sources of funds dried up overnight, ship finance specialists in Hong Kong have confirmed Stringent banking secrecy makes the overall total
impossible to quantify, although anecdotal evidence suggests that the number of deals is up by a factor of over 10, albeit from a low base. Bank of China,
Industrial and Commercial Bank of China, China Construction Bank, the Export-Import Bank of China, Bank of Communications and China Development
Bank are all active in the market. Meanwhile, two separate sources have told Lloyd's List that ICBC has poached a star local ship finance specialist of
overseas Chinese extraction from a European bank, a direction of travel that would have been unthinkable only a few years ago. Neither was willing to
name the individual ahead of a public announcement. Prominent industry figures in Hong Kong now predict that Chinese ship finance will emerge on the
world stage in force within a matter of years, especially if London, New York and Hamburg in effect hand them the business on a plate. With Germany's
KG system clearly in decline and the UK Financial Services Authority set to spring a regulatory onslaught across the City, a full-scale rout may even be on
the cards. By contrast, Chinese banks have every incentive to keep domestic shipyards working. The only health warning is that the tap could suddenly
be turned off should Chinese regulators decide to cool down an economy that some analysts believe is overheating on the back of a huge asset bubble.
An expatriate Hong Kong ship finance lawyer said that the picture had transformed beyond recognition over the last 12 months: "Chinese banks have
suddenly gone from being niche players, to put it kindly, to being a major force in providing funds for global shipping." It makes sense. It supports
Chinese shipyards, which employ a lot of people and use steel from Chinese steel mills, which also employ a lot of people. They build ships which can be
used to build more iron ore from Australia and coal from South Africa, and keep the Chinese economic machine moving." So far only a couple of eastwest deals - most notably last year's loan of $389m from China Eximbank to New York-listed OSG - have been reported in the trade media, and the
assumption had been that Chinese banks were almost exclusively backing Chinese and overseas Chinese firms. But the lawyer revealed that his
company's workload had exploded over the last year or so, moving from six or seven deals a year for Chinese banks to six or seven a month. A
"significant number" involve European and North American interests. While unable to name western companies due to client confidentiality, he said:
"They are big names. They are not small names." They include leading players in the container and dry bulk sectors. Tanker activity so far has been
limited to Hong Kong owners. A local lawyer at a rival company confirmed the dramatic surge of lending over the last period, but insisted that Chinese
banks remain selective: "I have heard of people with lower credit ratings approaching them, but they have been turned away.

Source: Lloyds List

Tuesday, May 18, 2010

28th April 2010


www.clarksons.com

10

London Shipping Law Centre - Maritime Business Forum

Kexim boosts Ship Financing


The Export-Import Bank of Korea is expanding ship financing for cash-strapped shipbuilders and shipowners.
The Korea Eximbank on November 18th held Shipbuilder & Shipowner CEO Invitation Talk attended by chief executives from 10
yards and owners including Hyundai Heavy Industries.
Kim Dong-su, the president of the bank, and the chief executives discussed the difficulties industry players now have and measures
to help them secure liquidity.
Mr Kim said, For shipyards and shipping firms to overcome current crisis, appropriate financial support is necessary as well as
restructuring. We plan to provide as much ship financing as needed in the industry.
The industry representatives asked the bank to mitigate interest cost in the long term and expand ship financing scale, envisaging a
prolonged slump.
An official from a shipbuilding company said, As shipbuilding industry faces severe downturn, commercial banks almost totally
stopped providing new ship loans. Against this backdrop, we wish Korea Eximbank, as a government-run bank, will more
aggresively provide ship financing.
A shipping player said, As ship prices go down, banks are requesting for more security for newbuilding loans under loan to value
(LTV) ratio condition, and our agony is deepening.
By October end this year, the Korea Eximbank has provided manufacturing financing of KRW 2.21trn ($1.91bn) for yards and their
collaborative companies and network loans of KRW 2.18trn.

Source: Lloyds List


28th April 2010
www.clarksons.com

London Shipping Law Centre - Maritime Business Forum

Conclusions
Bank finance scarcely available while demand remains substantial
Banks and owners lack liquidity/capital, funding, reduced or negative cash flows, internally focused on risk
Banks focus on Core Client, Core Region and Core Sectors
Banks finance terms and conditions less favorable for ship owners definitely a bankers market
Traditional shipping lenders are closing, merging and/or reducing balance sheets
Debt restructuring a high priority
New funds need to be sourced
Shift from vessel financing East
Export Credit Agencies involved and a big lender to the shipping sector
Public equity and high yield bond markets open up again
Bank lending is returning albeit very slowly
Larger public and privately owned companies have become stronger and easier access to varying sources of
credit and cash reserves
The banking market remains fragile and personally believe that capital will remain tight for a number of years.

28th April 2010


www.clarksons.com

11