Clause 9A BARECON ’89 – obligation to maintain vessel in class an innominate term and not a condition
The vessel was classed by Bureau Veritas.
On 17 October 2012 the vessel was let for 15 years .
Her class certificates expired on 6 November 2017.
On 7 December 2017 owners terminated for breach of clause 9A.
Two arbitrators found that the obligation to maintain class was not absolute. Reasonable notice should have been given to rectify. They likened this obligation to that of owners in time charters.
Phillips J gave permission to appeal on two points of law: was the obligation absolute? and, was the obligation an innominate term or a condition?
Carr J found that the obligation was both absolute and a condition, and set aside the partial interim award.
She accepted the argument that a shipowner’s obligation to maintain class in a time charter was fundamentally different to the same obligation imposed on a bareboat charterer.
Failure to maintain class gave rise to grave consequences such as loss of insurance cover.
Properly construed, in context, the obligation was both an absolute obligation and a condition, breach of which entitled owners to cancel.
Gross LJ thought differently. In context, clause 9A was not a condition. In the absence of express definition, the intention of the parties was not to create an absolute obligation.
Parties have the freedom to make an objectively trivial term a condition provided they do so expressly. The purpose of the label is to trigger the right to cancel.
Where there is no express identification of a term as condition, it will only be considered such if it is material. This enquiry, based on inference, is no different to the question whether an obligation is absolute.
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