A claim for liquidated damages under a ship refurbishment contract raised the challenging issue of concurrent delay.(1) In considering the case law, the court identified some important groundwork for the analysis of concurrent delay. In particular, it noted that there is concurrency only if both events (contractor delay and non-contractor's risk event) in fact (as distinct from theoretically) cause delay to the progress of the works and the delaying effect of the two events must be felt at the same time. This reasoning has a parallel in the prevention principle cases, where the act relied on must actually prevent the contractor from carrying out the works within the contract period.
In summary, the court said that unless a concurrency actually affects the scheduled completion date, the contractor cannot claim the benefit of it. Causation in fact must be proved based on the situation at the time regarding delay.
For further information on this topic please contact Chris Fellowes at Mayer Brown International LLP by telephone (+44 20 3130 3000) or email ([email protected]). The Mayer Brown International LLP website can be accessed at www.mayerbrown.com.
(1) Saga Cruises BDF Ltd & Anor v Fincantieri SPA (2016 EWHC 1875).