Case Briefing | The Darius Case
Petersham Holdings Limited
Edmiston & Company Limited
Merle Wood & Associates Inc
Mr Justice Field:
- There are two principal issues to be decided in this trial. First, were the defendant yacht brokers the “effective cause” of the sale of the super yacht Darius by Petersham Holdings Limited (“Petersham”) to Paragon International Limited, the corporate vehicle of the Al Futtaim family of the UAE. Second, if the answer to the first question is “yes”, what sum is the first defendant (“Edmiston & Co”) entitled to be paid by way of commission.
- The first claimant (“Mr Berezovsky”) is an extremely wealthy Russian businessman who was granted asylum by the UK Government on 10 September 2003. In the late 1990s, Mr Berezovsky began to use the services of the founder of Edmiston & Co, Mr Nicholas Edmiston, in connection with the purchase and/or sale of a number of motor yachts, including Streamsea (jointly with Mr Roman Abramovich), U.B.F., Thunder B, The Kiring, Tugatsu and EOL B
- In early 2004, Mr Berezovsky entered into discussions with Fr. Luerssen Werft Gmbh & Co (“FLW”), a shipyard in Bremen, Germany, in respect of a proposed new build given the name Darius, a 110 metre (360 feet) super yacht. In these discussions, FLW was represented by its Managing Director, Mr Peter Luerssen (“Mr Luerssen”). Mr Berezovsky sought from and was given advice by Mr Edmiston on the Darius project. It is not clear what role, if any, Edmiston & Co played in introducing the project to FLW. Whatever be the true position, Edmiston & Co was paid a commission by FLW upon payment of the contract price. This arrangement was not disclosed by Edmiston & Co to Mr Berezovsky. It is the subject of separate proceedings intending to be brought by Mr Berezovsky which form no part of this trial.
- On 7 October 2004, a contract for the construction of Darius was concluded (the “shipbuilding contract”) between FLW and Petersham, a Cayman Islands special purpose vehicle, ultimately owned by Mr Berezovsky. The contract price for the construction of the Yacht was €148,540,000, payable in instalments. Under clause 9 of the shipbuilding contract, FLW was entitled to terminate the contract if an instalment remained unpaid for 90 days and it had the right to elect whether or not to complete the Yacht. If FLW were to terminate the contract, it would come under an obligation to use its best endeavours to sell the Yacht (complete or incomplete as the case might be) on such terms as it considered appropriate.
- Petersham failed to pay the fifth instalment, an event that led to amendments to the shipbuilding contract contained in a document entitled “Master Addendum”, dated 6 November 2007. Pursuant to the Master Addendum, FLW became entitled to terminate the shipbuilding contract if an instalment was outstanding for 45 days and Petersham was afforded the right to postpone the delivery date by up to six months, in which event FLW could claim for all consequential additional cost and expense; and if an instalment was outstanding, the right to terminate the contract was postponed for the same period by which the delivery date was postponed.
- Shortly after the execution of the Master Addendum, the Darius suffered a flood. Water got in through the joints of a window set below the water line and caused extensive damage. Thereafter, Petersham refused to pay the sixth instalment arguing that it was not due by reason of the flood. FLW insisted, however, that if the sixth instalment were not paid by 11 January 2008, it would be entitled to terminate the shipbuilding contract under the Master Addendum. On 10 January 2008, Petersham extended the delivery date by six months, thereby extending the date by which the sixth instalment had to be paid to 28 May 2008.
- On 14 May 2008, FLW sent an invoice for €23,890,421.93, representing the seventh instalment. If this sum were to remain unpaid for 45 days, i.e. by mid-July 2008, FLW would have the right to terminate the contract. Petersham also had to pay the sixth instalment by 28 May 2008. Mr Berezovsky was in a difficult situation. He did not have the ready means to pay the shipbuilding contract instalments as they fell due, and if he failed to pay any of them by the due date, he stood to lose at least a substantial part of his investment in the Yacht, namely the instalments totalling €118,000,000 he had paid towards the contract price. Mr Berezovsky therefore decided to try to sell the Yacht as a vessel in the course of construction, whilst at the same time trying to find financing for the balance of the contract price. On 14 May 2008, he had a meeting with Mr Edmiston, attended by his (Mr Berezovsky’s) personal assistant, Mr Michael Cotlick. Mr Berezovsky’s difficulties over the sixth and seventh instalments were discussed and Mr Edmiston was made aware that if the dispute with FLW were not resolved by mid July 2008, Mr Berezovsky could lose control of the Yacht to FLW. Mr Edmiston told Mr Berezovsky that he thought that a net price of €300,000,000 (i.e. net of commission and other expenses) could be achieved and Mr Berezovsky asked him to begin marketing the Darius on a discreet basis with a view to realising a net price of €300,000,000, but with no approaches to be made to Russian nationals. Mr Edmiston understood that Edmiston & Co were being appointed as a selling broker on a non-exclusive basis. Nothing was said about the applicable rate of commission, but it is common ground that an oral brokerage contract was concluded between Edmiston & Co and Mr Berezovsky and Petersham, if not at this meeting, then in the course of the following days, so that if Edmiston & Co can establish that they were the effective cause of the sale of the Darius, they are entitled to a reasonable commission.
- Mr Edmiston reported what happened at the meeting on 14 May 2008 to his son Jamie (who managed Edmiston & Co.’s London office), and to another of his senior brokers, Chris Cecil-Wright. The search was on for a buyer and given Mr Berezovsky’s difficulties with FLW, Edmiston & Co had to be ready to move quickly. To this end, they began to assemble details of the Darius, including particulars of the specification, drawings, renderings (artists’ impressions), photographs and a model, to assist in marketing the yacht. It is common practice for a broker to “badge” this sort of material with its own name and logo to assist in establishing that it was the particular broker who brought about the introduction that led to the sale. And this is what Edmiston & Co did. It “edmistonised” all of the promotional material it intended to use in the marketing of the Darius.
- In early June 2008, Mr Edmiston received a telephone call from Mr Merle Wood, a yacht broker based in Florida, USA. Mr Wood had learned from a wealthy client, Mr David Geffen, that a friend of his was interested in buying a luxury super yacht and Mr Wood was calling to ask Mr Edmiston whether the Darius’ 377 ft sister ship, the Pelorus, was for sale. Mr Edmiston told him that it was not but went on to ask him to assist in finding a buyer for Darius.
- Mr Wood has worked as a yacht broker for almost 30 years. He set up the second defendant (“MWA”) in 1988 and has grown its business to the point that it is now one of the leading international super yacht brokers in the US. Mr Wood and Mr Edmiston have worked together many times over the years. In some instances, Mr Edmiston’s firm was primary broker and MWA a sub-broker and in others the roles have been the other way round. When the two firms act jointly, there is rarely if ever a written contract. Instead, Mr Edmiston and Mr Wood rely on their mutual trust and respect. Such is the closeness of their relationship, they speak to each on the telephone almost every day, sometimes more than once. They also frequently correspond by email.
- The appointment of sub-brokers at the super yacht end of ship broking is common, especially where a principal broker is exclusively appointed under a Central Agency Agreement (a “CAA”), the expectation here being that the central broker will market the listing through a network of sub-brokers. Edmiston & Co were not engaged to sell Darius under a CAA; their appointment, as I have said, was on a non-exclusive basis. However, there was no prohibition imposed on them against using sub-brokers and it has not been argued that their appointment of MWA as a sub-broker in the sale of the Darius disentitles them from a commission, or that steps taken by MWA to procure a sale of the Darius cannot be relied upon by Edmiston & Co in support of their claim that they were the effective cause of the sale of the Yacht.
- Mr Wood passed on details of the Darius to Mr Geffen for onward transmission to his friend who was looking for a large yacht. In the meantime, Edmiston & Co had identified His Majesty the King of Saudi Arabia as a potential buyer and set about using a well-connected representative of luxury brands in the Middle East to make contact with members of the King’s entourage, in particular his private secretary, to draw the project to His Majesty’s attention. Edmiston & Co also attempted to market the Darius to the Mittal family, but this proved difficult: they had already approached by Mr Berezovsky directly.
- One of Mr Wood’s many contacts is Captain Sean Wrigley. In 2008, Captain Wrigley was captain of the 170 ft Amels Radiant, a motor yacht owned by Mr Abdullah Al Futtaim (“Mr Abdullah”). Captain Wrigley took up this position in early 2007. Before this, he had captained a number of yachts owned by various members of the Arison family based in the US. Captain Wrigley first met Mr Wood in 1990 and was subsequently in contact with him when Mr Wood acted as broker in respect of Arison-owned yachts.
- One of Captain Wrigley’s responsibilities was to assist the Al Futtaim family in identifying yachts for potential purchase. In anticipation of taking up his appointment as Captain of the Radiant, he accompanied members of the Al Futtaim family on a visit to the Feadship shipyard in Holland to inspect an 85 metre, 25 knot, yacht that the yard was marketing. Captain Wrigley reported the Al Futtaims’ interest in buying a new yacht to Mr Wood, CNI and Burgess Yachts, another firm of yacht brokers. He told Mr Wood in about November 2006 that the Al Futtaims were looking for a yacht preferably constructed by Feadship. Earlier in the course of 2006, Mr Wood had drawn Captain Wrigley’s attention to two yachts, but nothing came of these suggestions.
- On 26 February 2007, Captain Wrigley emailed Mr Wood to tell him that the Al Futtaims were still looking for an 85 metre yacht and on 7 June 2007 he emailed Mr Wood giving him some background on his employers stating that they were high net worth individuals who were “desparate” to buy or to have a yacht built. On 11 June 2007 Mr Wood sent Captain Wrigley by email photographs of the 225 ft Amels Lady Anne and the 203 ft Rasselas. Thinking that these boats might meet his employer’s requirements whilst a new yacht was being built, Captain Wrigley showed the photographs to the senior member of the Al Futtaim family, Mr Abdullah, and suggested that the Lady Anne was certainly worth considering. Mr Abdullah agreed and he and his son Omar inspected the yacht with Captain Wrigley on a couple of occasions. In the event, the Al Futtaims’ discussions concerning a possible purchase of the Lady Anne fell through but, as Captain Wrigley told Mr Wood, they remained in the market for a new yacht. In an email to Captain Wrigley dated 26 June 2007, Mr Wood complained that it was frustrating trying to sell a boat to the Al Futtaims because they were obsessed with cutting out all of the brokers from the transaction.
- On 11 July 2008, Mr Wood sent a somewhat speculative email to Captain Wrigley telling him that Pelorus’ sistership was for sale at €+/- 325 million and asking if his boss wanted to “REALLY step up.” Attached to the email was a profile picture of the model of Darius. In two further emails sent to Captain Wrigley the same day and the following day, Mr Wood specified the length of the yacht (110 metres), when it was to be finished (2009), where it was being built and its top speed (19 knots). He signed off with the words: “Let’s sell it to him quickly as it won’t last.” Captain Wrigley replied: “Will do my best! If he bites can we agree on 3 million euros commission for me? Will be in front of him as soon as I get him alone.” In a subsequent email, Mr Wood gave his agreement to Captain Wrigley’s proposed commission.
- On 13 July 2008, Captain Wrigley told Mr Abdullah about the Darius and showed him some photographs of the model he had received from Mr Wood imprinted with the Merle Wood & Associates name and logo. Captain Wrigley told Mr Abdullah at what price the yacht was on the market, its length (which he called “huge”) and described it as “very stylish”. Mr Abdullah did not know much about FLW and so Captain Wrigley told him it was a very respected yard whose yachts were very well built and of superb quality. Mr Abdullah was a little disappointed that the top speed was not more than 20 knots but he liked the look and the size of the yacht and the price did not seem to bother him. Captain Wrigley also mentioned that one big advantage of the Darius was that delivery would be much quicker than a new-build to be constructed from scratch. Mr Abdullah was very interested in the Darius. He telephoned his son, Omar (“Mr Omar”), to tell him about it and asked him to come on board the Radiant to review the Darius information Captain Wrigley had produced. Mr Abdullah also asked Captain Wrigley to obtain more information on the yacht. Later that day Captain Wrigley reported to Mr Wood that Mr Abdullah was disappointed about Darius‘ speed but was not worried about the price. Captain Wrigley also suggested that Mr Wood should inform the seller that if Mr Abdullah went to look at the yacht, it was only because of himself and Mr Wood, as Mr Abdullah had not previously been aware of the Darius.
- On 14 July 2008, Mr Wood emailed Captain Wrigley a large number of photographs and plans of the Darius with “Merle Wood & Associates” stamped on them. The documents sent to Captain Wrigley consisted of: (i) detailed photographs of the model of the Darius; (ii) the Darius‘ specification and main characteristics; (iii) details of the accommodation and other facilities; (iv) copies of the General Arrangement; and (v) a rendering (an artist’s impression) of the interiors. Captain Wrigley showed these documents to Mr Abdullah the next day and spoke to him again about the yacht recommending that he buy it because it suited the Al Futtaims’ purposes in many ways. Later that day Captain Wrigley was asked to join Mr Abdullah and Mr Omar in the lounge of the Radiant. Mr Abdullah had shown the photographs and plans to Mr Omar and they wanted to talk about the Darius to Captain Wrigley. They were excited about the yacht and agreed with Captain Wrigley’s suggestion that they should visit it. Captain Wrigley told them that it was owned by Mr Berezovsky.
- On 15 July 2008, Mr Wood told the Edmiston & Co team by email that Mr Abdullah Al Futtaim was a new prospect for Darius who seemed to be developing very quickly and suggested that since there was some chance that Mr Futtaim might ask “Luerssen” (viz FLW) about the boat, Mr Berezovsky should be advised in writing that day about Mr Abdullah’s interest through Edmiston & Co’s efforts.
- On 16 July 2008, Captain Wrigley told Mr Abdullah that he had never visited the FLW yard and that if Mr Abdullah went to see the yacht, Captain Wrigley would very much like to join him. Mr Abdullah rejected this idea. He told Captain Wrigley that he and Mr Omar did not want him to accompany them when visiting the yacht because this would be showing too much interest. They did not want FLW to know that they knew about the Darius or had any interest in purchasing her. Instead, they thought they would get a better price if they gave the impression that they were just dropping into the yard to look around. Following this conversation, Captain Wrigley emailed Mr Wood that he had a feeling that Mr Abdullah was going to Luerssen, and maybe Feadship. Thereupon, Mr Wood informed Mr Edmiston by email that Mr Abdullah might possibly make an unannounced visit to Luerssen in the next day or two and again suggested that he advise Mr Berezovsky of the efforts of Edmiston & Co and MWA to introduce the Al Futtaim family to Darius.
- Neither Mr Abdullah, nor Mr Omar, nor any representative of FLW, including in particular, Mr Luerssen, gave evidence. Mr Wood, however, relates in paragraphs 68-69 of his first witness statement dated 31 March 2010 a conversation he had with Mr Luerssen at the Fort Lauderdale Boat Show on 2 November 2008 which I find to be reliable, admissible hearsay. In the course of his cross-examination, Mr Wood also testified that he had spoken on the telephone to Mr Luerssen on the first day of the trial and was told that the first contact Mr Luerssen had had with the Al Futtaims was ten years prior to 2008 and the last contact he had had with the Al Futtaims prior to his dealings with them over the Darius was three years before that. I decline to place any reliance on this evidence from Mr Wood. It took the Claimants completely by surprise and emerged only after their witnesses had given evidence. It would therefore be unfair to allow it to be admitted.
- On the basis of: (i) paragraphs 68-69 of Mr Wood’s first witness statement; (ii) assertions pleaded by the Claimants and not disputed by the Defendants and assertions made by FLW in draft Part 20 pleadings prepared for an unsuccessful joinder application; (iii) paragraphs 160, 163, 195 and 199 of Mr Cotlick’s first witness statement; and (iv) documents produced by way of disclosure, I make the following findings as to the Al Futtaims’ dealings with Mr Luerssen concerning the Darius project. The Al Futtaims had had contact with FLW over the possibility of a 75-85 metre new yacht but in July 2008 were not actively pursuing this with FLW or Mr Luerssen. On 18 July 2008, following Captain Wrigley’s introduction to them of the Darius project as related above, Mr Abdullah and Mr Omar visited the FLW yard when Mr Luerssen was away. They were met by an FLW representative of whom they enquired whether the yard had a vessel under construction that could be delivered sooner than a “from scratch” new build; and when they were told there might be such a possibility but it could only be discussed with Mr Luerssen, they asked for a meeting with Mr Luerssen in Monaco. The requested meeting took place in Monaco on 30 July 2008 when Mr Luerssen presented details of the Darius and the Al Futtaims expressed a serious interest in being put in touch with the owner to discuss a potential purchase. They made it clear that they did not want to deal with brokers. On 20 August 2008, Mr Luerssen met Mr Omar to discuss the Darius further. Sometime between 1 August and 28 August 2008, the Al Futtaims told Mr Luerssen that they were prepared to pay €210 million. They also wanted to talk to Mr Luerssen about some proposed modifications to the Darius and their impact on the delivery time. Mr Luerssen passed on to the Al Futtaims the contact details of Mr Berezovsky’s assistant, Mr Cotlick, and then stepped aside to allow the Al Futtaims to negotiate directly with Mr Cotlick and Mr Berezovsky.
- On about 15 September 2008, at Mr Cotlick’s request, Mr Luerssen spoke to Mr Omar about his assertion that Mr Cotlick had agreed a price of €240 million at a meeting on 7 September 2008. Mr Omar told Mr Luerssen that he had informed his father that a deal had been done at this price. Mr Luerssen reported this conversation to Mr Cotlick, stating that Mr Omar’s credibility was now at stake and that in the light of the global financial crisis it would be difficult to find another buyer. The following day (16 September 2008), Mr Luerssen attended a negotiation meeting between Mr Cotlick and Mr Omar at which an agreement in principle for the purchase of the Darius for €240 million was reached.
- At the completion meeting for the sale of the Darius to the Al Futtaims on 22 October 2008, an issue arose over the flooding of the Darius and Mr Luerssen, having been alerted to this apparent stumbling block, telephoned Mr Omar and told him that the deal would fall through unless it was signed and payment made that day.
- In the meantime, throughout June and the first half of July 2008, Mr Berezovsky and Mr Luerssen had a number of meetings to try to resolve the dispute over the outstanding sums due under the shipbuilding contract. On about 10 July 2008, FLW served details of a provisional claim against Petersham totalling €94.5 million (including the 2% sales fee agreed in Master Addendum 1) which was discussed at a meeting at Luton airport on 12 July 2008. No agreement was reached at this meeting and Mr Berezovsky and Mr Luerssen and Mr Friedich Luerssen, the co-owner of FLW, met again on Mr Berezovsky’s yacht, the Kiring, on 15 July 2008. Shortly before this meeting, Mr Berezovsky, accompanied by Mr Cotlick, had a meeting with Mr Edmiston on the Kiring at which Mr Edmiston repeated his view that a net price of €300,000,000 was definitely achievable for the Darius and confirmed that the gross asking price should be €350,000,000. Mr Edmiston also told Mr Berezovsky again that the King of Saudi Arabia was a strong potential purchaser. I shall return to this meeting later in this judgment.
- The meeting between Mr Luerssen, his cousin, Mr Berezovsky and Mr Cotlick resulted in an agreement contained in a Memorandum of Understanding signed by the parties. The following day the terms of the MOU were recorded (with irrelevant minor amendments) in a detailed agreement (“the Master Addendum No 2”). Under the MOU, FLW’s claim was settled on terms, inter alia, that the contract sum should be increased from €189,000,000 to €212,000,000, which included the €94,604,172.12 claimed on 10 July 2008 and thus incorporated the 2% sale fee; the payment dates for the sixth, seventh and eighth instalments were extended to 1 December 2008 (6th and 7th) and 31 March 2009 (8th ); the delivery date was adjusted to 30 November 2009; the Owner agreed to act in order to sell the yacht for the best possible price and FLW agreed to make the best possible effort to help the Owner get the best possible price; and if the yacht was not sold by 1 December 2008, the title in the vessel was to be transferred to FLW which would make the best reasonable effort in order to sell the vessel for the best possible price.
- Mr Edmiston had another meeting with Mr Berezovsky on the Kiring the following day, 16 July 2008, at which he was told that an agreement had been reached with FLW giving Mr Berezovsky more time to sell the yacht. Mr Berezovsky told Mr Edmiston that he still needed to sell the yacht quickly and asked him to keep in close contact with Mr Cotlick to get the Darius sold.
“We are now working with a number of clients that we have introduced to DARIUS with a view of moving ahead speedily and the objective to obtain a net price for you of 300,000,000. I believe that is definitely achievable….. For the sake of good order I list below the potential purchasers with whom we are currently discussing DARIUS:
HM King of Saudi Arabia
Sergey Brin of Google USA
Abdullah Al Futtain (sic) of UAE
Mohammed Al Sheik of Saudi Arabia (for his brother, Sheik Al Sheik, the original Owner of PELORUS)
It is important, as some of these individuals may already be known to Lurssen, that it is left to me to deal with them to avoid any confusion, particularly regarding price. I will ensure that I meet with Peter Lurssen when I am at the shipyard next week to guarantee maximum cooperation between us.”
- Edmiston & Co’s purpose in sending this email was to “register” its interest in these potential buyers with the seller. This is standard practice where a yacht is being marketed on a non-exclusive basis. By registering its interest in this way, the broker protects its position should the vessel be sold to a purchaser he introduced to the seller. His hope, indeed his expectation, is that, following such registration, the seller will take into account the registration of his interest and entitlement to commission if the vessel is sold to one of the potential buyers identified in the registration.
- On 28 August 2008, Mr Luerssen reported to Mr Berezovsky and Mr Cotlick over dinner that the Al Futtaim family was interested in buying the Darius at a price of €210 million. It was decided that Mr Cotlick should conduct the negotiations on behalf of Mr Berezovsky and Mr Luerssen was requested to ask Mr Omar to write to him confirming the family’s interest. I find that this decision to keep the brokers out of the negotiating process (which is what happened) was made in light of the Al Futtaims’ insistence that they deal with the seller directly and because Mr Luerssen told Mr Berezovsky and Mr Cotlick that it was he who had introduced the Al Futtaims to the yacht. Edmiston & Co were not cut out of the negotiations as a cynical ploy to avoid having to pay them a commission.
- On 29 August 2008, Mr Cotlick received an email from Mr Omar offering to purchase project Darius for €210 million. Thereafter, various meetings and negotiations took place between Mr Cotlick and Mr Omar which produced Heads of Agreement signed on 18 September 2008 and a completed sale between Petersham Holdings Limited and Paragon International Limited on 22 October 2008 at a price of €240 million.
- Edmiston & Co were not told by anyone that negotiations were going on with the Al Futtaims and in early September 2008, Mr Wood expressed a concern that the Al Futtaims might be seeking to negotiate a purchase direct with Mr Luerssen. On 5 September 2008, Edmiston & Co began to take protective action, with Jamie Edmiston updating Mr Luerssen with progress made on Darius and listing three potential purchasers, including Abdullah Al Futtaim, who was “…. seriously looking at making a major leap into the big league. There has been extensive back and forth with both him and his Captain – we are waiting to get their next stage of feedback.” Mr Luerssen responded on 9 September 2008 saying that there was not much news from his side but some of the people were in contact with the owner already, to which Edmiston & Co replied that there should not be a problem with people being in contact with the owner since Edmiston & Co had documentation showing that they were the introducers of all the potential purchasers they had identified to Mr Berezovsky and Mr Luerssen. On 16 September 2008, Edmiston & Co also emailed Mr Cotlick listing 11 clients, including the Al Futtaims (“the most likely candidate at the moment”). On 17 September 2008, Jamie Edmiston informed Mr Luerssen that “[W]e introduced DARIUS to the Al Futtaim’s via our contacts and efforts…. Regardless of the final price, please ensure that any price …. includes a full 7.5% commission to include Lurssen’s 2.5% fee + the 5% brokerage commission to cover others involved in this deal. I trust it won’t be necessary, however, should it be required, we do have a full and detailed paper trail that documents all of our efforts and actions in making the initial introduction …. to the Al Futtaim family…” When Mr Luerssen replied stating that “we are not aware (nor do we expect to be advised) of what “contacts and efforts” you have made to introduce (if that be the case) the Al Futtaim family to the vessel,” Mr Edmiston got on the phone to Mr Cotlick to tell him that Edmiston & Co had been the introducing brokers and sent him a copy of the email to Mr Berezovsky of 17 July 2008 registering the firm’s interest in the Al Futtaims. On 19 September 2008, the day after the Heads of Agreement had been signed, Mr Cotlick instructed Edmiston & Co to stop all activities to sell Darius until further notice.
- Edmiston then proceeded to try to persuade Mr Berezovsky that they were entitled to a commission but their representations fell on deaf ears. Amongst the steps they took was to arrange for MWA’s US lawyers to send a letter before action claiming a commission under the sub-brokerage arrangement, which Edmiston drew to the attention of Mr Berezovsky.
- On 27 February 2009, MWA filed a Complaint in US District Court for Southern District of Florida against Edmiston & Co, Petersham Holdings Limited and Mr Berezovsky claiming an entitlement to a commission of 70% of 5% of the gross sales price of Darius, “as is industry standard”. Mr Berezovsky and Petersham Holdings Limited responded by issuing a claim in this court for negative declarations, inter alia, that Edmiston & Co is not entitled to any commission in respect of the sale of the Darius and the Claimants have no liability to MWA in respect of any commission due to MWA arising out of the sale of the Darius. For their part, Edmiston & Co and MWA deny that the Claimants are entitled to the declarations sought and each has filed a Counterclaim, the former counterclaiming for a commission of between 5% and 10% of the sale price of the Darius, and the latter counterclaiming for a commission of 70% of the commission due from the Claimants to Edmiston & Co on the basis of a brokerage contract entered into by the Claimants through Edmiston or on the basis of a quantum meruit. It is these claims and counterclaims that fall to be determined in this trial.
Were Edmiston & Co the effective cause of the purchase of the Darius by the Al Futtaim family?
“Effective cause” means more than simply “cause”. The inquiry is whether the actions of the agent really brought about the relation of buyer and seller and it is seldom conclusive that there were other events which could each be described as a cause of the ensuing sale.
- Mr Howe QC for the Claimants submitted that in the context of the super yacht market, if a broker introduces the eventual buyer to the seller but is not used as a channel for at least some of the ensuing negotiations, he is not an effective cause of the sale. Mr Howe maintained that the individuals who can afford the huge prices commanded by super yachts are few and their identity can be easily ascertained by perusing the annual Forbes list of the world’s richest persons or the Sunday Times Rich list. A broker is accordingly expected to do more to earn his commission than merely circularise particulars of the yacht to individuals whose names appear on these lists. What he must do is “bring the potential buyer into the transaction”, in particular by “eliciting” an offer from him.
- The Al Futtaims entered into no discussions about price with Edmiston & Co but instead signalled their readiness to make an offer of €210 million to Mr Luerssen and thereafter negotiated directly with Mr Cotlick, who was assisted on occasion by Mr Luerssen. It follows, argued Mr Howe, that whether or not Edmiston & Co (through the actions of MWA) introduced the Al Futtaims to Mr Berezovsky and instilled a strong interest in a possible purchase of Darius, they were not the effective cause of the eventual sale.
- I cannot accept this argument. Entitlement to a commission dependent on the eventuation of a transaction has been subject to the “effective cause” test since at least the decision of the Court of Appeal in Millar, Son & Co v Radford (1903) 19 TLR 575. There is nothing in that authority or the many subsequent cases on the application of the test that supports the gloss contended for by Mr Howe. In my judgement, it is open to a broker operating in the super yacht market to establish that he was the effective cause of the eventual sale notwithstanding that the eventual buyer whom he alerted to the availability of the vessel chooses not to negotiate through the introducing broker. Whether the introducing broker was indeed the effective cause of the sale will depend on the facts of the individual case.
- Mr Howe also submitted that the steps taken by Captain Wrigley to recommend the purchase of the Darius to Mr Abdullah and Mr Omar, as distinct from acting as the conduit of the information sent by Mr Wood, could not form part of Edmiston & Co’s effective cause case. Captain Wrigley accepted in evidence that he did not disclose to his employers his commission agreement with Mr Wood, although he thought that, based on their previous dealings in the luxury yacht market, the Al Futtaims may well have realised that he might be paid a commission by MWA. It followed, argued Mr Howe, that in recommending the Darius as he did, Captain Wrigley was acting in breach of fiduciary duty, and as a consequence Edmiston & Co could not pray in aid these actions of Captain Wrigley. I reject this submission. Mr Wood left the employment of the Al Futtaims some time ago and the court is in no position to form a view whether the Al Futtaims were aware that he might be paid a commission or, if they were not, whether, upon learning of his commission agreement with Mr Wood, they might take some form of action against Captain Wrigley. What is clear is that it is virtually inconceivable that the Al Futtaims could rescind their purchase of the Darius on the basis of Captain Wrigley’s commission agreement, assuming that they would want to, which is a most unlikely scenario. In these circumstances, and bearing in mind that it is accepted on all sides that we are not here concerned with a question of illegality, I do not think that I should decline to take account of the causal effect of Captain Wrigley’s recommendation of the Darius to the Al Futtaims.
- Mr Howe next submitted that it was Mr Luerssen who was the effective cause of the sale and not Edmiston & Co. It mattered not that Mr Luerssen did not act in the capacity of a broker and was not acting on a commission dependent upon achievement of a sale. The point was that Mr Luerssen was a causally potent actor in this matter acting pursuant to FLW’s obligation under the Master Addendum No 2 to make the best possible effort to help the Owner get the best possible price.
a) There was an existing client relationship between FLW/Mr Luerssen and the Al Futtaim family and the Al Futtaims were discussing with FLW/Mr Luerssen a 75m yacht at around the same time as, or shortly before, the provision of information about Darius by Mr Wood.
b) When the Al Futtaim’s visited the FLW yard on 18 July 2008 they did not go to see Darius but went to inspect some of the yachts under construction with the intent to discuss more seriously their build plans.
c) Mr Luerssen met the Al Futtaims on 30 July 2008 at their request to discuss Darius.
d) On 1 August 2008 Mr Luerssen informed Mr Cotlick of his contact with the Al Futtaim family and on 4 August 2008 called Mr Cotlick to discuss further the Al Futtaim family and his meeting with them in Monaco.
e) Mr Luerssen met with Mr Omar in London on 20 August 2008 and subsequently met Mr Berezovsky the same day when he indicated that he was talking to the Al Futtaim family and that they were interested in purchasing Darius.
f) Mr Luerssen met Mr Berezovsky and Mr Cotlick on 28 August 2008 in London when: (i) he repeated that the Al Futtaim family were interested in purchasing Darius but were talking about a price of €210 million; (ii) he was given Mr Cotlick’s email address and asked to request Mr Omar to confirm the family’s interest.
g) Mr Luerssen successfully “elicited” an offer from the Al Futtaim family and on 29 August 2008 Mr Cotlick received an e-mail from Mr Omar making an initial offer of €210 million.
h) Mr Luerssen suggested to Mr Cotlick over the telephone on 15 September 2008 that Mr Omar might have told his father that a price of €240 million had been agreed and recommended that the Claimants should do a deal at €240 million.
i) Mr Luerssen had a conversation on 16 September 2008 with Mr Omar at Mr Cotlick’s request and attended the subsequent meeting at which agreement in principle was reached.
j) Mr Luerssen made a presentation to Allen & Overy to explain the additional costs associated with project Darius and to allay the fears of the Al Futtaim family that the contract price had been increased without justification to increase the Claimants’ profit.
k) Mr Luerssen made a telephone call during the completion meeting to Mr Omar in which he told him that the deal would fall through unless it was signed and payment was made that day.
- Mr Howe also relied on Mr Cotlick’s evidence in paragraph 40 in his first and second witness statements in which he says that: (i) the role played by Mr Luerssen was in substance akin to a broker working in competition with Edmiston & Co; and (ii) he believes that he would not have met Mr Omar and commenced negotiations with him on 7 September 2007 were it not for Mr Luerssen having talked to Mr Omar and provided him with information.
- In addition, Mr Howe sought to underline the importance of the role played by Mr Luerssen by noting that the Al Futtaims were not prepared to negotiate through brokers, such as Edmiston & Co, whereas they were prepared to use Mr Luerssen as a channel of communication, at least to get the ball rolling.
- I decline to accept these submissions. In my judgement, even if Captain Wrigley’s recommendation of the yacht is ignored, Edmiston & Co, rather than Mr Luerssen, were the effective cause of the sale by reason of the introduction effected by Mr Wood through Captain Wrigley. Until they became aware of the information provided by Mr Wood, the Al Futtaims had no knowledge of Darius‘ existence, let alone that Darius was for sale, and as a result of Mr Wood’s introduction, they became very interested indeed in exploring the possibility of buying the yacht. It was that interest that caused the Al Futtaims to visit the FLW yard on 18 July 2008. There was no visit already in the offing and they did not go to inspect some of the yachts under construction with the intent to discuss more seriously their build plans. Instead, they went to find out more about Darius, and just as they told Captain Wrigley they would, they did not let on during the visit that they were interested in Darius, but engineered a situation where it was the yard that mentioned the possibility of a sale of a 110 metre yacht. Likewise, it was the interest in buying Darius engendered by Mr Wood’s introduction that was the principal cause of the Al Futtaims meeting with Mr Luerssen in Monaco on 30 July 2008; the subsequent negotiations conducted with Mr Cotlick; and the completed sale.
- Mr Luerssen played the role set out in (c) to (k) in paragraph 44 above, but these acts did not break the chain of causation or constitute an intervening cause of greater potency than Mr Wood’s introduction. Mr Luerssen did not conduct the negotiations but he undoubtedly assisted in the achievement of the sale, in particular by explaining the costs making up the contract price payable by Mr Berezovsky and by bringing pressure to bear at the completion meeting. However, it was the strong interest in buying the yacht triggered by Mr Wood’s introduction that was the dominant cause of the successful negotiations, not the actions of Mr Luerssen.
- As for Mr Howe’s reliance on Mr Cotlick’s evidence in paragraph 40 of his first and second witness statements, I disagree with the witness’s opinion that Mr Luerssen’s role was akin to a broker in competition with Edmiston & Co. Mr Luerssen was not acting as a broker in the hope of earning a commission but as boat builder under an obligation to assist the Owner achieve the best price. If Mr Luerssen had told the Al Futtaims that any expressions of interest must be communicated directly to the owner, with whom all negotiations should be conducted, I have no doubt that they would have acted accordingly, such was their interest in the project caused by the introduction.
- The Al Futtaims’ keen interest in project Darius was also due in part to Captain Wrigley’s recommendation of the yacht. If Captain Wrigley’s recommendation stands to be attributed to the Defendants, as I have held it does, or it is part of the causal story on which the Defendants can rely, as I think it is, the Defendants’ case that Edmiston was the effective cause of the transaction is a fortiori. But for the reasons I have given above, the Defendants do not need to go that far.
- The situation before the court is strikingly similar to that in Allan v Leo Lines Limited  1 Lloyd’s LR 127. There the defendant shipowners instructed brokers, John I Jacobs & Co (“Jacobs”) to find a purchaser for the motor vessel Thomas G. Jacobs sent out circulars to a number of ship brokers, including the plaintiff, Mr Allan, who passed on the names of the Thomas G and her sister ship, the Alba, to a Swiss company, which passed them on to another Swiss company who in turn sent them to Slovenija Linije (“SL”). SL then instructed a consulting engineer, Mr Rotter, to inspect and report on both vessels. Mr Rotter went to Gothenburg where he inspected the Alba but upon being denied access to the ship’s engines, he told the owners’ managing agent, Mr Manne, that he was not going to give a favourable report. Mr Manne then referred Mr Rotter to the effective owner of the Thomas G, Mr Glucksman, who was in Gothenburg. Mr Glucksman mistakenly thought that Mr Rotter’s principals had been introduced by Mr Manne. After meeting Mr Glucksman in Gothenburg, Mr Rotter inspected the Thomas G in England without the participation of Mr Allan. This inspection led to a favourable report and SL made an initial offer through Mr Allan which was passed on to Jacobs. SL then negotiated directly with Mr Glucksman but later made a counter offer both to Mr Glucksman direct and through Mr Allan. Finally, YL accepted a compromise figure and the vessel was sold to SL on that basis. Mr Allan sued for a commission of 5% and the question was whether he was the effective cause of the sale. In delivering judgement in favour of Mr Allan, Devlin J said:
To my mind, there can be no doubt at all that Mr. Allan was the effective cause of the introduction. It was the particulars which he sent to the Yugoslav shipowners that caused them to instruct Mr Rotter and which took Mr Rotter to Gothenburg, and, if it had not been for the chance, if I may so put it, that the true owner of this apparently British-owned vessel happened to reside in Gothenburg, would no doubt in due course have taken him to England on information supplied through Mr Allan as to where the vessel could be inspected. Mr Manne was not in any sense the cause of the introduction, on the facts as I have found. That, I think, is a very important consideration in determining who is the cause of the sale, because in these matters the introduction is perhaps very often the main difficulty. A broker has to keep a wide channel of connections and his work consists very largely and mainly in finding a person who happens to want a ship of that sort at about that particular price. But it is not, as Mr Tilling rightly submits, the whole point. (Page 131)
- Devlin J then went on to deal with the submission that Mr Allan was not the effective cause of the sale because he did not arrange the inspection and had not been able to get the price up above £62,500, when the final price was £63,750. In Devlin J’s view, inspection could have been conveniently arranged by Mr Allan if matters had taken a different course, and the price was simply a question of negotiations taking what was a quite normal and ordinary course by means of correspondence until the parties arrived at a compromise figure. He continued:
I think it was the introduction which was the effective cause of the sale, bringing together the two parties who wanted a particular ship of that sort at a particular price, and that Mr Allan’s efforts were therefore the effective cause of the sale.
I think one can view the matter from another angle by way of an alternative. If a broker effects an introduction and is willing to go on with the usual business negotiation, it hardly lies in the mouth of an owner who takes it out of his hands to say that he has made no further contribution. As I say, it was not taken deliberately out of his hands, but I do not think that makes any difference. I can quite see that an owner and a prospective buyer, particularly at the last stage of the negotiations, may want to short circuit matters and get to close quarters. If an owner feels that he does not want to use the services of his agent who effected the introduction, as I say, it hardly lies in his mouth to say that the agent did not do anything that was of any very great value thereafter. (Page 132)
- It is correct, as Mr Howe pointed out, that in Allan the plaintiff had been involved in the negotiations and that no personal effort on his part was required for the price to be agreed. Nonetheless, I attach considerable significance to what Devlin J said as to the importance of the broker’s role in making an introduction. Whilst it is true that the number of potential purchasers of super yachts is relatively small and their identities relatively well known, these individuals tend to be surrounded by an entourage, as is common in the case of the super rich. Thus the challenge for the super yacht broker is to establish a network of contacts who have the ear of potential buyers, a process that takes time and involves considerable skill and expertise. The introductory role played by Mr Wood through Captain Wrigley was therefore an extremely valuable one. Edmiston would have expected to have been involved in the negotiations that resulted from the introduction. They were prevented from doing so by Mr Berezovsky for the reasons I have set out above. But as Devlin J observed, in these circumstances it can hardly lie in the mouth of Mr Berezovsky to contend that their lack of involvement in the negotiations disentitles them from a commission, the negotiations being the direct result of Mr Wood’s introduction.
What sum is due by way of commission?
- The Defendants contend that, in the super yacht market, the maximum commission on the sale of a pre-owned yacht is 10% and this is what a broker will aim for. If, as is commonly the case, no rate is agreed at the time the broker is engaged, the parties will negotiate a rate, either when a serious offer has been made or after the sale has been completed. In the submission of the Defendants, the negotiation will take into account the following, inter alia, factors: (i) the relationship between the broker and the seller; (ii) the extent to which other similar yachts are on the market; (iii) the extent to which there are other potential purchasers; (iv) the price achieved; (v) the speed of the transaction; (vi) the involvement of sub-brokers; and (vii) the extent to which the brokers have participated in the transaction. The Defendants argue that, taking these considerations into account, the commission payable on the Darius transaction is at or near the maximum rate of 10% and certainly not less than 5%.
- The Claimants put before the court a Schedule based on information contained in 27 Central Agency Agreements disclosed by the Defendants. This shows the name of the vessel and its size, the asking price and the commission terms. A very mixed picture emerges. There is only a handful of contracts where a fixed rate commission applied to the gross price was agreed, the rates ranging from 4% to 8%. For the most part a maximum rate is specified, the actual rate being left to be negotiated. In this category there are ten contracts where the maximum rate is 10%; otherwise the maximum rates are 7.5%, 7.0% and 5%. There are also some contracts that provide for different rates according to the band of value achieved, the top rates being 10% (five contracts) and 7% (one contract). None of the asking prices come anywhere near the asking price for the Darius. The highest asking price is €129,750,000, which was for the Alfa Nero, the commission on that contract being a fixed rate of 7%. The Schedule sets out the agreed commission terms but it does not show what commission was actually paid. The only evidence of paid or final rates of commission relates to Ecstasea — 86 m, Feadship, sold for approximately €100 million (2.5%), Pelorus — 115m, FLW, sold for US$150 million (4%) and Thunder B — 49.9m, agreed to be sold for € 22. 25 million (5.9%).
- The Claimants assert that Mr Edmiston agreed that the commission should be 2.5% on a net sale price of €300,000,000 and that a lower rate should apply if the net sale price achieved was lower than €300,000,000. In the alternative, the Claimants contend that having regard to the rates of commission agreed to be paid or paid in certain transactions where the Defendants acted as brokers, a reasonable commission would be in the region of 2.5% and certainly less than 4% of the gross sale price.
- In support of their primary case that a rate of 2.5% was agreed, the Claimants rely on the evidence of Mr Cotlick who, in paragraph 92 of his first witness statement, says that during the meeting on 15 July 2008 on the Kiring attended by himself, Mr Edmiston and Mr Berezovsky, Mr Edmiston mentioned that he would be agreeable to a fee of 2.5% in respect of a sale at or above €300 million net. According to Mr Cotlick, Mr Edmiston said that this would be a good deal for him, given the agreed asking price (€350 million). Mr Cotlick further states in paragraph 93 of his first witness statement that it was understood that if the net sale price were less than €300 million, Mr Edmiston’s commission would be correspondingly reduced and that if it were more he would be rewarded with an increase in the level of commission.
- Mr Berezovsky testified that he had no memory of commission being discussed at the 15 July 2008 meeting with Mr Edmiston. He told the court that he concentrates on the big picture, leaving the detail to Mr Cotlick. His memory of the detail of the case is therefore poor or non-existent, unless there is some contemporaneous documentation to remind him of events.
- Mr Edmiston denied in his evidence that he had said at the meeting that he was agreeable to a fee of 2.5%. He testified that he did not recall commission rates being discussed at this stage and he would never have agreed to a reduction in the firm’s commission rate to 2.5% for the following reasons: (i) he had had no discussions with Mr Wood about a commission at 2.5%; (ii) there was no incentive for him to lower his commission – Mr Berezovsky needed to sell the vessel quickly and at a high price, which put Mr Edmiston in a strong bargaining position; (iii) given Darius‘ exceptional nature, he would have insisted on a commission at or near the industry standard, which he claimed was 10%. He accepted that he told Mr Berezovsky that Darius should be marketed at €350 million, but he certainly did not agree that if the vessel was sold for less than €300 million, his commission would be at a reduced rate.
- I found Mr Cotlick to be an impressive and truthful witness who had a very good recall of matters of detail. As I have said, Mr Berezovsky did not recall any discussion about rates of commission, but this is perhaps not surprising given that he concentrates on the big picture, leaving the detail to Mr Cotlick. I prefer Mr Cotlick’s evidence to that of Mr Edmiston, who relies not so much on a clear recollection but on reasons why he would not have said what Mr Cotlick said he did say. This is not to conclude that Mr Edmiston was a dishonest witness. He was not. What in my judgement he has done is to convince himself with the benefit of hindsight and for the reasons he sets out in paragraph 10 of his second witness statement, that he could not have said that he was agreeable to a commission of 2.5% on a net sale price of €300 million. In my judgement, a readiness to accept a commission of 2.5% on a net sale price of €300 million is not implausible. At this rate of commission, if €300 million net had been realised, Edmiston & Co would have been entitled to €7.5 million, and Mr Edmiston thought that a gross price of €350 million was definitely achievable. Furthermore, Mr Berezovsky was a long-standing and valued client whose allegiance Mr Edmiston wanted to retain. In addition, having heard the evidence of the parties’ experts, Mr Walker and Mr Van Vliet, it is clear to me that there is no industry standard commission of 10%. Instead, 10% is an aspirational figure that a broker will aim for but very often not achieve, having to agree to a substantially lower figure, depending on the circumstances. I note too that: (i) YachtZoo and Royal Oceanic were engaged by Mr Berezovsky to market Darius at agreed commission rates of 3% and 2.5%; (ii) MWA were paid a commission of 2.5% in respect of the sale in June 2009 of Ecstasea, an 86 m Feadship yacht at a price of approximately €100 million; (iii) a commission of 4% was paid in respect of the sale of Pelorus, the sister ship of Darius, sold in October 2003 for US$150 million; (iv) the commission agreed by Edmiston & Co in respect of the Princess Mariana and Moon Goddess was 4% of the gross price; (v) in his email of 17 September 2008 to Mr Cotlick, Jamie Edmiston claimed a commission of 5% on top of the 2.5% he assumed was being claimed by Mr Luerssen; (vi) Mr Edmiston claimed commission on the Darius sale at a rate of 5% in a letter dated 16 October 2008 to Mr Berezovsky; and (vii) in the US proceedings brought by MWA against Petersham Holdings Limited and Mr Berezovsky, the claim was for a commission of 70% of 5% of the gross sales price of Darius, “as is industry standard”.
- It is common ground that Mr Edmiston said nothing at the meeting on 15 July 2008 about accepting a commission lower than 2.5% if the net price were below €300 million. In my opinion, it was not implicit that Mr Edmiston was agreeing to accept a lower commission in these circumstances. On the contrary, I think the reasonable expectation of those present would be that the rate of commission would go up if the net price were appreciably lower than €300 million, since at the end of the day a broker is interested in his actual return on a transaction.
- The significance of Mr Edmiston’s expressed readiness to accept 2.5% if a net price of €300 million were achieved is that this is a strong indicator that a reasonable commission on a gross price of €240 million will be around 2.5%. With this in mind, and having regard to: (a) the fact that the ultimate sale price was €240 million rather than €350 million; and (b) the matters noted in (i) to (vii) in paragraph 61 above, I conclude that the appropriate rate of commission to award in this case is 3% of €240 million, namely €7.2 million.
Does MWA have a right to commission enforceable directly against the Claimants?
- Amongst the declarations sought by the Claimants are declarations that they are not party to the alleged sub-brokerage agreement made between Edmiston & Co and MWA and that they have no liability to MWA in respect of brokerage and/or commission in connection with the sale of Darius whether in contract, quantum meruit, restitution or otherwise. By way of response, MWA counterclaim for commission: (i) under an alleged contract made on behalf of the Claimants by Edmiston & Co which, if it was made without authority, was ratified; or (ii) on the basis of a quantum meruit.
- In his closing submissions, Mr Allen QC on behalf of MWA submitted that the counterclaim only fell to be determined if Edmiston & Co’s claim for commission failed for some reason. Consistently with this approach, he advanced no submissions in support of the counterclaim or in opposition to the Claimant’s declarations referred to above beyond saying that if Edmiston & Co’s claim failed it would be contended on the basis of Allan that MWA had an entitlement to a commission under a contract with the Claimants, or alternatively on a quantum meruit.
- There is no evidence whatsoever that Edmiston & Co contracted with MWA behalf of the Claimants. Moreover, the first the Claimants knew of MWA’s involvement in the marketing of Darius was on 17 September 2008, the day before Heads of Agreement were signed between Petersham and Paragon International Limited.
- In Allan, a sub-broker established an entitlement to a commission from the seller of the vessel, but there is nothing in the report of that case that explains how a contract between the sub-broker and the seller came into existence. One is left to assume that it was common ground that in the circumstances there obtaining the plaintiff would have an entitlement to a commission enforceable against the seller if he could show that he was the effective cause of the sale.
- MWA’s counterclaim for a quantum meruit must also be dismissed. It is well established that where a commission agent is engaged pursuant to a contract that provides for a commission on the happening of an event, there is no room for a quantum meruit; see Luxor (Eastbourne) Ltd v Cooper  AC 108. Further, such a claim is precluded by the contractual allocation of risks implicit in the chain of contracts between the Claimants and Edmiston & Co and Edmiston & Co and MWA; see Pan Ocean Shipping Co Ltd v Creditcorp Ltd  1 WLR 161.
- Both the Claimants and the First Defendants aver that Edmiston & Co were engaged by both Claimants to find a buyer to purchase project Darius. Accordingly, for the reasons I have given, Edmiston & Co are entitled to judgement on their counterclaim against both Claimants in the sum of €7.2 million and the Claimants’ claims against the First Defendant are dismissed.
- In substance, this trial involved the relatively straightforward issues identified in the opening paragraph of this judgement. There was accordingly no justification for the length of the Opening Submissions of the Claimants and the First Defendants which ran to 67 and 50 pages respectively. The witness statements too were over detailed and over long and too much time was taken up in cross-examining the Defendants’ witnesses on peripheral matters. In 1957 the case of Allan was tried in two days. This trial should have been completed in 3 to 3 ½ days maximum. It is most important that the profession should avoid over-complication and endeavour to conduct trials in this court with the concision of earlier times.