case 12,2003 建筑合同的解释

GD Construction (St Albans) Ltd. v Scottish & Newcastle Plc [2003] EWCA Civ 16 (22 January 2003)
建筑合同—约定雇主和承包人投保—承包人过失—火灾—雇主未投保—承包人的赔偿责任—合同的解释

上诉人GD Construction (St Albans) Limited，也就是承包人，和被上诉人Scottish & Newcastle PLC，也即雇主，签订了一项房屋翻新改建合同。这合同用的是标准合同：IFC 84。合同中包括以下条款：
Clause 1 of IFC 84: general obligations of the Contractor.

"The Contractor shall carry out and complete the Works in a proper and workmanlike manner and in accordance with the Contract Documents identified in the 2nd recital: provided that where and to the extent that approval of the quality of materials or of the standards of workmanship is a matter for the opinion of the Architect/the Contract Administrator such quality and standards shall be to the reasonable satisfaction of the Architect/the Contract Administrator."

Clause 6.1.2 of IFC 84: Contractor's liability and obligation to indemnify in respect of certain loss and damage

"6.1.2 The Contractor shall be liable for, and shall indemnify the Employer against, any expense, liability, loss, claim or proceedings in respect of any loss, injury or damage whatsoever to any property real or personal in so far as such loss, injury or damage arises out of or in the course of or by reason of the carrying out of the Works and to the extent that the same is due to any negligence, breach of statutory duty, omission or default of the Contractor, his servants or agents or of any person employed upon or engaged upon or in connection with the Works or any part thereof, his servants or agents or of any other person who may properly be on the site upon or in connection with the Works or any part thereof, his servants or agents, other than the Employer or any person employed, engaged or authorised by him or by any local authority or statutory undertaker executing work solely in pursuance of its statutory rights or obligations. This liability and indemnity is subject to clause 6.1.3 and, where clause 6.3C.1 is applicable, excludes loss or damage to any property required to be insured thereunder caused by a Specified Peril".

Clause 6.3C.1 of IFC 84: obligation of Employer to take out and maintain insurance

"6.3C.1 The Employer shall take out and maintain a Joint Names Policy in respect of the existing structures together with the contents thereof owned by him or for which he is responsible, for the full cost of reinstatement, repair or replacement of loss or damage due to one or more of the Specified Perils up to and including the date of issue of the certificate of Practical Completion or up to and including the date of the determination of the employment of the Contractor… The Contractor, for himself and for all sub-contractors referred to in clause 3.3 who are, pursuant to clause 6.3.3, recognised as an insured under the Joint Names Policy referred to in clause 6.3C.1 or clause 6.3C.3, shall authorise the insurers to pay all monies from such insurance in respect loss or damage to the Employer.

Clause 8.3 of IFC 84: definition of "Specified Perils" for the purposes of Clause 6.3C1 of the IFC 84

"8.3 Unless the context otherwise requires or the Articles or the Conditions or an item or entry in the Appendix specifically otherwise provides, the following words and phrases in the Articles of Agreement, the Conditions, the Supplemental Conditions and the Appendix shall have the meanings given below:….
Specified Perils:
Means fire, lightning, explosion, storm, tempest, flood, bursting or overflowing of water tanks, apparatus or pipes, earthquake, aircraft and other aerial devices or articles dropped therefrom, riot and civil commotion, but excluding Excepted Risks."

clause 1要求承包人在整个工程中妥善尽到注意义务。clause 6.1.2规定了承包人的责任范围。clause 6.3C.1规定雇主应当就整个建筑，以雇主和承包人的联合名义投保。Clause 8.3对特定风险一词作了定义。结果因为承包人的员工不小心，造成火灾，整个建筑遭到很大破坏。
按照合同的明示和默示条款，雇主向承包人提出索赔。理由是：1、合同明确规定承包人应当小心行事，避免火灾；2、合同明确规定了承包人的责任范围，目前的情况在此范围内；3、合同默示，承包人应当谨慎行事，它有一项注意义务：a duty of care to exercise all reasonable skill and care in the performance of its duties and obligations，现在这项义务被违反了。也就是说，主要理由是违反了基于合同的和普通法下的注意义务。
承包人的答辩理由是：1、雇主没有按约定投保；2、对合同的解释可以知道，对于因为火灾引起的损失，承包人没有赔偿责任；3、如果雇主没有投保，它就违约了。在缺乏这份保险合同的情况下，如果承包人有责任，那么承包人有权从雇主那里要回赔偿，因为承包人无法从那份本该订立的保险合同中得到赔付。
初审法官面临的问题是："If the breaches of contract and negligence pleaded in the Statement of Case are assumed, is the Defendant [ie the Contractor] liable to the Claimant [ie. the Employer] for the categories of loss set out at 3(b) and (c)?"他判决雇主胜诉。
上诉法院的三位法官WARD大法官、LONGMORE大法官、AIKENS法官审理了本案。主要的判词由Aikens法官给出。他非常详细地回顾了有关的案例，并逐个与本案进行了比较。在上诉中，承包人的主要理由如下：
(i) Clause 6.1.2 of the Contract sets out a contractual basis for the liability of the Contractor to the Employer and the Employer's right to be indemnified, in respect of losses due only to negligence or kindred types of fault in carrying out the contract works.
(ii) The effect of the last sentence of Clause 6.1.2 of the Contract is that where Clause 6.3C.1 of the Contract is in force between the parties, then the Employer has to take out a policy of insurance in the Joint Names of Employer and Contractor against the loss or damage to existing structures caused by the "specified perils".
(iii) At the same time the last sentence of Clause 6.1.2 excludes the Contractor from any liability and obligation to indemnify the Employer in respect of any loss or damage to any property that is required to be insured, provided that the loss or damage is caused by a "specified peril".
(iv) The peril "fire" is a "specified peril". The peril "Fire" in an insurance policy on property covers a fire caused accidentally and also by the negligence of an assured.
(v) Because Clause 6.1.2 is intended to set out the scope of the Contractor's liability and obligation to indemnify in respect of loss and damage caused by negligence and kindred defaults of the Contractor, the parties must have intended the last sentence of Clause 6.1.2 to limit the scope of liability of the Contractor for loss and damage caused by negligent acts. Therefore the word "fire" (one of the "specified perils") must be construed to include fire caused by the negligence of the Contractor, or those for whom he was responsible under the contract, including Clause 6.1.2. Otherwise the restriction on liability imposed by the last sentence of Clause 6.1.2 would have no content.
(vi) The fact that the Employer failed to obtain insurance of the existing structure against the peril of "fire" can make no difference to the proper construction of the Contract. But if the Employer had obtained the insurance and had claimed on it, then the insurer could not have sued the Contractor by right of subrogation, because the Contractor is a Joint Insured and also because of the express provision in the Contract for the waiver of subrogation rights against a co – assured. This demonstrates the parties' intention that the Contractor should not be liable for loss and damage to the existing structure caused by a fire that was the result of negligence of those for whose acts the Contractor is generally responsible under the Contract.
(vii) This case is analogous to the position of the contractors in the House of Lord's decisions in Scottish Special Housing Association v Wimpey Construction UK Ltd [1986] 1WLR 995 and Co-operative Retail Services Ltd v Taylor Young Partnership and others [2002] 1 WLR 1419.
对方的反驳是：
(i) Clause 6.1.2 of the Contract makes the Contractor liable to the Employer for loss and damage which, (a) is caused not only by the Contractor's negligence but that of others, for whom the Contractor might not be responsible at common law; (b) in circumstances which might not amount to negligence or breach of contract by the Contractor and (c) covers an extensive range of losses that might not be recoverable in an action for negligence.
(ii) Clause 6.3C.1 obliges the Employers to take out an insurance policy in respect of particular property (ie. the existing structures), but it does not define precisely the "specified peril" of "fire".
(iii) Therefore the Employer would have fulfilled its contractual obligation to the Contractor if the Employer had taken out an insurance policy that did not cover "negligently caused fire". It is important to note that the Employer was not obliged to take out an "All Risks" policy.
(iv) The last sentence of Clause 6.1.2 is to be read as an exclusion of the Contractor's liability or obligation to indemnify in respect of certain types of loss and damage covered by the insurance policy to be taken out by the Employer. That exclusion must be construed like all other exceptions clauses on which the party otherwise liable seeks to rely. Thus, if the clause does not expressly exclude liability for negligence, then such liability is only to be excluded by the clause if, on a reasonable reading, it is wide enough to include liability for negligence and it cannot reasonably cover any other ground of liability. As set out in (i) above, that is not the case here, so liability for negligently caused fire is not excluded by the wording of Clause 6.1.2; Clause 6.3C.1 and the word "fire" in the "specified perils".
(v) Clause 6.1.2 and 6.3C.1 together have the same effect as the clauses in building contracts that were considered by the Court of Appeal cases of Dorset CC v Southern Felt Roofing Ltd (1989) 29 ConLR 61 and London Borough of Barking and Dagenham v Stamford Asphalt Co Ltd (1997) 54 ConLR 25. In both cases the Court of Appeal held that the contractor's liability for damage caused by a fire started by its negligence was not excluded by the simple word "fire" in, respectively, an employer's responsibility clause in a building contract, and an employer's obligation to insure clause in a building contract. Mr Taverner submitted that the House of Lords' cases on which Mr Eklund relied were distinguishable on the facts and the terms of the contracts involved.
Aikens法官认真分析了Clause 6.1.2的意思,他得出结论：
In my view Clauses 6.1.2; 6.3C.1 and the definition of "Specified Perils" and "Joint Names Policy" are intended together to define the whole scope of the liability of the Contractor to the Employers for negligent acts and defaults when Clause 6.3C.1 applies. None of the clauses can be looked at in isolation. So the extent of the exclusion of the liability of the Contractor and its obligation to indemnify the Employer must depend on what the parties intended should be insured under the "Joint Names Policy". That depends in turn on what the parties intended should be included within the definitions of the "Specified Perils" that are identified. 也就是说，clauses 6.1.2和clause 6.3C.1联系起来理解，它们的意思是在适用clause 6.3C.的情况下，确定承包人的责任。
然后，他讨论了火灾一词的含义：the peril "fire" covers loss proximately caused by a fire, whether the fire was started by accident, was caused by the negligence of the assured or any third party or was caused by the deliberate act of a third party.
他指出：
Under Clause 6.3C.1 of the Contract, the Employer had a contractual obligation to take out and maintain a Joint Names Policy in respect of the existing structures which would pay for the full cost of reinstatement, repair or replacement of loss or damage due to the Specified Peril (amongst others) of "fire".