SA 第29期 - 承包商设计责任的最新案例 - 英国最高法院关于MTH vs. EON案例判决的启示

作者简介： 柏山 （Sam Boyling）北京办公室建筑和工程团队的合伙人，他在2004年加入品诚梅森伦敦办公室。Sam在法院，仲裁，裁决，调解，和解和商业谈判中代表数十家国际承包商进行争议解决。他也为客户就数个行业领域内大型和高风险项目提供商务和合同问题的咨询服务。他是FIDIC,NEC和JCT标准合同方面的专家。

胡远航律师（中国）：英国品诚梅森律师事务所资深律师，英国执业律师，中国律师资格，英国皇家特许测量师，英国御准仲裁员协会会员，商务部中国国际工程咨询协会专家委员会委员，专注于中国企业境外基础设施建设的法律咨询与争议解决服务。个人微信号：hawksoar

文章提要：

在2017年8月3日，英国最高法院就MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Limited案作出了判决。国际工程业内对这一判决结果等待已久。判决就设计建造总承包商的设计责任问题进行了澄清。并再次确认了英国法延续已久的原则: 如果合同中对于承包商的设计有相互冲突的设计规范和设计标准，尤其是当一个具体的设计规范与一个较高要求的合同目的冲突时，承包商的设计将必须满足其中较高的要求和标准。

本篇文章同时还与SA 第21期 - 案例分析：什么是"设计寿命" （Design Life）？设计寿命结束前设施无法运行是否属于承包商责任？相关，有兴趣的同仁可以参考阅读。

On 3 August 2017, the Supreme Court of the United Kingdom handed down its judgment in the long-running case of MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Limited.

The case had initially been heard in the Technology & Construction Court TCC in 2014, where E.ON was successful, and then appealed to the Court of Appeal in 2015, where MT Højgaard (MTH) successfully appealed against the TCC judgement.  Now, the Supreme Court has found in favour of E.ON and has reinstated the original judgment of the TCC judge.

The disputes between the parties arose from a contract pursuant to which MTH agreed to carry out the design, manufacture and installation of two offshore wind farms, of the coast of the United Kingdom.  In relation to the foundations of the turbines, MTH agreed (1) to design them so that they would have a lifetime of 20 years and (2) to do so in accordance with a document referred to as J101. J101 was a reference to an international standard for the design of offshore wind turbines.

Following installation, it transpired that one of the figures in the J101 document was wrong by a factor of 10, and meant that the strength of the foundation structures had been substantially over-estimated and they subsequently failed.

The cost of the remedial works was disputed between the parties.  E.ON asserted that MTH was in breach because, clearly, the foundations were not designed to achieve a 20-year design life.  MTH denied liability asserting that it had followed the J101 specification and, where there was a design methodology specified by the E.ON, it could not be held responsible for a defects arising from a fault in the specification.

In the TCC, the judge followed the long-established position in English law that, where there is (1) an obligation to carry out and complete work in accordance with a specification and, also, (2) an obligation to ensure that the completed work is fit for its intended purpose or some measure of outcome of the design, compliance with the first obligation will not relieve a contractor from his breach of the second (and higher) obligation.  In the TCC, E.ON was successful in its argument.

The Court of Appeal overturned the TCC judgment and found that the warranty that MTH had given in relation to the design life was "subject to" carrying out the design in accordance with the specification.

The Supreme Court did not agree with the Court of Appeal and reinstated the judgment of the TCC.

The Supreme Court confirmed the general principle of English law that, where a contract includes two terms, one requiring the contractor to provide a structure which is produced in accordance with a specified design standard (or design), the other requiring the structure to satisfy a stated performance criteria, the contractor will nonetheless be responsible for satisfying the performance criteria notwithstanding that it cannot be achieved by complying with the applicable design standard. 

In its reasoning, the Supreme Court was careful to follow one of the key the common law rules of the interpretation and construction of contracts: that the court should try to reconcile seemingly incompatible or conflicting terms of a contract in order to give meaning and effect to then both.  In that regard, the Court took the approach that the obligation to follow the specified design standard (i.e., J101) was a minimum or lower obligation, the fulfilment of which did not excuse a failure to achieve the (higher) obligation of a 20-year design life.

As a matter of English law, this judgment is now binding on all lower courts and will be applied by courts and tribunals considering contracts governed by English law.  It is also likely to be very persuasive in other common law jurisdictions.

In major construction and engineering contracts, there are often several different documents that comprise the contract, often authored and negotiated by different individuals or teams. This case illustrates the dangers to parties to these contracts where there are different standards of design or performance specified at different parts of the contract.  A contractor will be held to the higher standard. Before signing a contract, the contractor should carry out a thorough review of all the terms in detail, in all parts and sections of the contract, in order to understand properly the extent of his obligations. 

如果您就上述内容有任何的问题，您可以随时联系柏山律师或者胡远航律师。本文为作者学习研究心得，不代表作者所执业的律师机构的意见或建议。