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From British Westinghouse to the New Flamenco: Misunderstanding Mitigation

2016; RELX Group (Netherlands); Linguagem: Inglês

10.2139/ssrn.2818056

1556-5068

Victor P. Goldberg,

Marine and Offshore Engineering Studies

Both the venerable British Westinghouse decision and the current New Flamenco case have been analyzed in terms of mitigation. Properly understood, in neither is mitigation relevant. Although in the former, the House of Lords came to the right result, the replacement of the substandard turbines with new superior ones was not to mitigate damages — the buyer would have installed the new turbines even had the Westinghouse turbines met the contractual specifications. Even if Westinghouse’s failure accelerated the replacement (which it almost certainly did not) it would have been a mistake to compensate the buyer for the cost of the new (Parsons) turbines.