Concurrent Delay – Further Developments In The Saga

Saga Cruises BDF Ltd v Fincantieri SpA [2016] EWHC 1875 (Comm)

A recent case has brought concurrent delay, an area of law that continues to spark debate, back into focus. Broadly speaking, concurrent delay occurs where there is delay on a project which is caused both by an event or events for which the Employer is responsible and by an event or events for which the Contractor is responsible.

Issues then arise regarding whether the Contractor is entitled to an extension of time and loss and expense, or whether instead the Employer is entitled to liquidated damages.

In the Saga Cruises case this situation arose. Fincantieri (referred to throughout the judgment as "the Yard") was contracted by Saga Cruises BDF Ltd ("Saga"), part of the Saga group to repair and refurbish a cruise ship. In accordance with the contract, as amended, the Yard was to deliver the ship, with the works to it complete, by 2 March 2012. The ship was not delivered until 16 March 2012. Saga claimed liquidated damages in respect of the 14 day delay, which were capped at 770,000 Euro.

Reviewing the authorities, the judge summarised the position stating that:

"A careful consideration of the authorities indicates that unless there is a concurrency actually affecting the completion date as then scheduled the contractor cannot claim the benefit of it. Causation in fact must be proved based on the situation at the time as regards delay."

Therefore, where the Contractor is in delay, it must show that delays for which the Employer was responsible actually contributed to the delay. The judge reviewed Employer and Contractor delay events and applied this...

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