Judgment on liability was entered against the defendant by the High Court on 23.9.2009 and damages are to be assessed. This judgment on liability was upheld by the Court of Appeal on 6.7.2010.

Thus, the proceedings before this court are limited to issues relating to assessment of damages that can be validly claimed by the plaintiff.

Plaintiffs claim

In this present case the plaintiff claims:

(i)Damages in the sum of USD 27,517,211.47 as pleaded in its Amended Statement of Claim or such other sum as this Court may assess or find proper.

(ii)Interest on all sums payable by the defendant at the rate of 8% per annum from 19.11.2008 to the date of final payment.

(iii)Costs.

Agreed facts

The following are the salient facts that are not in dispute.

(i)On 10-9-2008, the defendant issued an open Invitation to Bid ("ItB") for the supply of marine fuel oil ("MFO"), towards concluding a Bunker Fixed Price Agreement - TCM45/2008.

(ii)By the ItB, the defendant invited tenders for the supply of 102,600 mt ±5% operational tolerance level (basis 34,200 mt monthly) of MFO, for a period from 1-10-2008 to 31-12-2008.

(iii)Marinehub submitted its bid for the supply and delivery of MFO at the price of USD560.00/mt. This price was later revised to USD559.80/mt ("the FPC Price").

(iv)The defendant accepted Marinehub's bid for the supply and delivery of MFO, by a Letter of Award dated 16-9-2008 ("the Letter of Award"). The Letter of Award was duly accepted by Marinehub on 17-9-2008.

(v)A binding contract for the supply and delivery of 102,600 mt MFO ±5% operational tolerance level at the total price of USD57,435,480.00, on the monthly basis of 34,200 mt from 1-10-2008 to 31-12-2008 at the fixed FPC Price of USD559.80/mt, was accordingly concluded between the defendant and Marinehub, incorporating Part I and Part II of the ItB and the Letter of Award as the terms of the FPC. The delivery of the MFO was to be in Singapore.

(vi)The defendant took 18 separate deliveries amounting to a total of 20,334.59mt of MFO under the FPC for the month of October 2008.

(vii)There remained 13,865.174 mt MFO for the defendant to accept delivery of under the FPC, in October 2008.

(viii)A dispute arose as to the defendant's alleged entitlement to cany forward from October 2008 the 13,865 mt MFO for delivery in November 2008, at the "Means Piatt Bunkerwire at the contracted port on delivery date" by virtue of Clause 3.3 of the FPC, rather than the FPC Price of USD559.80/mt Means of Piatt Bunkerwire rate is a fluctuating market rate.

(ix)On 10-11-2008, the defendant sought to place 2 orders for MFO, amounting in total to 2,950mt, under PO Ref. No: FPOCT08BK019 ("Order 19") and PO Ref. No: FPOCT08BK020 ("Order 20") for delivery to the defendant's vessels MV WAN HAI 605, and MV BUNGA MAS 9 respectively at Means of Piatt Bunkerwire rate, as opposed to the FPC Price of USD559.80/mt

(x)Marinehub informed the defendant on 11-11-2008 that it was ready and willing to deliver the required MFO under Order 19 and Order 20 provided the price payable by the defendant was the FPC Price of USD559.80/mt. Marinehub was, ready to supply and deliver MFO to the defendant Means Piatt Bunkerwire price, provided the price differential as compared with the FPC Price was paid by the defendant.

(xi)The defendant received Notice of the Assignment of all Marinehub's interest in the FPC to the plaintiff on 13-11-2008.

(xii)The defendant purported to terminate the FPC by its e-mail dated 14-11-2008 to Marinehub on the alleged grounds that Marinehub failed to confirm Order 19 and Order 20.

(xiii)The plaintiff accepted the defendant's wrongful repudiation of the FPC, thereby bringing the FPC to an end; and sought damages from the defendant for breach of contract and wrongful repudiation of the FPC.

(xiv)As a consequence of the defendant's termination of the FPC, the defendant also failed to accept delivery of the contracted quantities of MFO for the months of November and December 2008.

(xv)Clause 13.1 of the FPC expressly pro

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