27 November 2009
Cobelfret Bulk Carriers NV v Swissmarine Services SA [2009] EWHC 2883 (Comm), [2009] All ER (D) 172 (Nov)
Where there was inconsistency between negotiated and standard terms, the negotiated terms prevailed. To be inconsistent a term had to contradict another term and not merely qualify or modify it.
The term had to be one which would almost entirely deprive the other term of any effect. In order to construe the negotiated term it had to be done fairly in the context of the contract as a whole and without any assumption as to what the parties might have meant.
A court had to ask whether a reasonable commercial construction of the whole contract could reconcile the two provisions.
