Geden Operations Ltd v Dry Bulk Handy Holdings Inc [2014] EWHC 885 (Comm), [2014] All ER (D) 271 (Mar)
Queen’s Bench Division, Commercial Court, Popplewell J, 28 Mar 2014
There is no principle of law whereby a party who has made his performance dependent on a discretion to be exercised by a third party is ipso facto deemed to be evincing an intention not to perform.
Charles Kimmins QC and Thomas Corby (instructed by Lax & Co) for the charterparty. Timothy Hill QC and Jeremy Lightfoot (instructed by Ince & Co) for the owners.
In July 2010 the parties entered into a time charterparty on an amended NYPE form for about 35 to 37 months. The vessel was still under construction at the time. Clause 8 provided in the usual way that the captain was to be under the orders and directions of the charterers. The charter also contained a Conwartime 2004 clause on an amended BIMCO piracy clause. The amendments deleted paras (a) and (b) so as to enable the vessel to transit the Gulf of Aden (GOA) without the owner’s consent.
