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What to consider when negotiating shipbuilding contracts

By 29. November 2021No Comments

What to consider when negotiating shipbuilding contracts

29. November 2021

Shipowners are back in the market ordering new vessels, so it seems like a good time to put out a reminder of key points to consider when negotiating shipbuilding contracts.

We have covered the most important issues and pitfalls in a series of three newsletters.

Part 3

Buyer’s Parent Guarantee

Where a shipping group or investor estab­lishes a subsi­diary for the purpose of entering in to a shipbuilding contract as buyer, the shipbuilder will typically want the buyer’s payment obliga­tions secured by a guarantee or other credit support from a more credit­worthy entity, usually the buying group’s principal holding company. Sometimes a shipbuilder may ask for bank guarantees, although it is far less common to see this being agreed by buyers.

The initial proposal from a builder for a buyer’s parent guarantee will generally request an „on demand“ guarantee. Buyers will want to see this amended so as to give the guarantor a right to dispute whether the under­lying payment is due, or at least will want to mirror the position under the refund guarantee where the payment obligation is deferred if procee­dings are commenced to dispute the under­lying payment obligation. Note that in the past it has been suggested that a parent guarantee (as opposed to a bank guarantee) of this type would be unlikely to be inter­preted as a on demand guarantee in any event (and hence the guarantor would be able to dispute whether the contract was properly termi­nated before having to pay a claim under the guarantee) but the courts have recently made clear that they would interpret it in the same way as a guarantee issued by a bank (i.e. in accordance with its terms, without special consi­de­ration of the business of the party issuing it).

For most buyer groups, probably the primary commercial issue to be consi­dered in relation to providing a guarantee (apart from whether to provide one at all) is whether it is reasonable to be required to provide such a guarantee for all instalments due under the shipbuilding contract up to and including the delivery instalment. Turning the commercial payment obliga­tions under the shipbuilding contract into on demand guarantee obliga­tions can have material adverse balance sheet conse­quences and so is not something to agree lightly, and where it is agreed it is beneficial to minimise the extent of the guaranteed obliga­tions. For this reason buyers will typically seek to limit any guarantee to cover only the earlier instalments (not including the first, which is usually aid upon contract effec­ti­veness anyway), on the basis that once the buyer has paid, say, 60% of the price and is holding title to the ship it has little or no real exposure because the value of the ship at any time should exceed the exposure to unpaid work and materials. Certainly, by the time the delivery instalment is due the builder will be holding on to a completed vessel and will generally have received around 80% of the price, and so only needs the value of the completed vessel to be 20% or more of the contract price in order to be fully secured. Alter­na­tively, a shipbuilder may be prepared to accept that a buyer parent may limit its liability by showing that the buyer has committed loan finance available to it and that its credit support liability can therefore be limited to the amount of equity funding required by such financing (and will reduce as such equity is paid in).

Post-Delivery Guarantee

Once a ship is delivered to the buyer, rights of redress against the shipyard are typically limited to the builder’s guarantee or warranty provision in the shipbuilding contract. Essen­tially this will make the builder liable for the repair of all defects disco­vered during a limited period following delivery (typically 12 months) but at the same time it will limit the builder’s liability so that it does not extend beyond this limited repair obligation. Hence costs and losses associated with having to take the vessel out of service because of the defect or to effect repairs will not be covered. Usually the repair obligation is phrased so as to be limited to repair of the defective item. As a minimum one would expect to expand this so that any damage caused to the vessel by the defective item would also be covered, and it is a good idea to look closely at the extent to which the cost of preparing the vessel for works and for drydo­cking, if required, will also be covered by the builder. In addition, it is necessary to spend time consi­dering how to handle repairs when it is not econo­mi­cally practi­cable to return the vessel to the builder’s shipyard for the required repairs. In parti­cular, on what basis can they be performed elsewhere at builder’s cost? And with some shipbuilders one may wish to consider whether they are suffi­ci­ently credit­worthy to be able to rely on their post-delivery guarantee, or whether that guarantee should itself be backed by financial security such as a bank guarantee.

In any event, where suppliers, such as engine manufac­turer or coatings manufac­turer, have provided warranties which extend beyond the period of the builder’s warranty a buyer will want to include in the post-delivery warranty that the remaining term of any such warranties are to be assigned to the buyer upon expiry of the shipbuilding contract warranty period.

Linked charters

Finally, many buyers will order vessels on the basis of having a pre-agreed charter in place for a charter term which is to commence upon delivery. Sometimes there will be detailed integration between the charter and the shipbuilding contract, as is often the case with LNG vessels, but generally there will not. In all cases it is important to make sure that the charter commitment is struc­tured in such a way that late delivery, off-spec delivery and non-delivery under the shipbuilding contract do not result in liability under the charter. We often see charterers attempting to claim a pass through of late delivery damages, which rather ignores that the corre­sponding delay costs are incurred by the owner (in accrued interest costs and lost income) whereas the charterer at least has the off-set of not having to pay the agreed charter hire. Of course, charterer may incur higher costs in chartering alter­native tonnage, so there may be a commercial balance to be struck, but if we assume that charterer will not be compen­sated for non-delivery it may seem odd that it should receive compen­sation for late delivery.

A pass through of damages for off-spec delivery is also often sought. Whether it should be given will depend upon, first, whether there is a corre­sponding adjus­tment of charter perfor­mance warranty and, secondly, whether the agreed charter term represents a signi­ficant proportion of the vessel’s expected economic life. In general, an owner should set the perfor­mance warranties in the charter at a level equal or below the maximum tolerance in the shipbuilding contract, so that it is never required to accept a ship which cannot meet the perfor­mance warranties in the charter. If this cannot be agreed, an owner should seek to have the charter perfor­mance warranties adjusted to conform to the actual perfor­mance of the delivered vessel (and bear in mind that expecting real world perfor­mance to match the perfor­mance achieved in sea trials is like expecting a car to achieve the manufacturer’s fuel consumption figures). Owners may also wish to negotiate terms with the charterer as regards how off hire is dealt with when caused by matters falling within the builder’s warranty. If the charter is a bareboat charter, this is likely to be at charterer’s risk anyway. With a time charter, depending upon the economic background to the overall arran­gement, it may be possible to agree that the charterer will take this economic risk (by agreeing not to put the vessel off hire for issues of this type) or at least will be prepared to compromise by not counting time off hire towards any accruing right of cancel­lation or similar. These are matters for negotiation with the charterer, rather than the builder, but need to be consi­dered in parallel, not as an afterthought.

Click here for part 1 (Intro­duction / Speci­fi­ca­tions and supervision).
Click here for part 2 (Termi­nation / Refund Guarantees).

Ihre Ansprech­partner:

Dr. Stefan Rindfleisch
Dr. Stefan Rindfleisch
rindfleisch@​erg-​legal.​com