“Under a loan agreement to fund vessel purchases, Lenders served an Acceleration Notice, following which Borrowers failed to pay the amount sought. Lenders relied upon 'No set-off and 'Event of Default' clauses and sought summary judgment. Borrowers alleged (i) that the Notice was invalid, (ii) placing Lenders in breach, (iii) preventing Borrowers' compliance. For the purposes of their application, Lenders accepted (i) to (iii) but relied solely on the 'No set-off' clause which, they said, stopped any application of the 'prevention principle' relied on by Borrowers. The Court held that that clause could not stop Borrowers from arguing that amounts were never due in the first place, therefore the summary judgment application failed, and Borrowers were free to argue their defence.”

“Under a time-charter, Charterers underpaid the 4th (15- day) hire instalment but paid the 5th and 6th in full. The day after the 6th instalment fell due, Owners served an anti-technicality notice and withdrew the Vessel, relying upon the BIMCO Non Payment of Hire Clause: "If the hire is not received by midnight on the due date....Owners shall notify Charterers [and] If the payment is not received within 72 running hours, Owners may by giving written notice within 12 running hours withdraw the Vessel....". The High Court, on appeal, upheld the Tribunal's finding that the BIMCO clause was not engaged, because it could only be operated for the immediately preceding 15- day instalment (which was paid in full) and not for arrears, rendering Owners' withdrawal a "renunciatory/ repudiatory" breach.”

“Charterers brought an underperformance claim under an amended NYPE form c/p in reliance on a weather bureau report. Clause 77 provided that "evidence of the weather conditions to be taken as reported daily on the noon position report to the Charterers...". The Tribunal found that the weather bureau's approach, which divided the 24-hour period in four 6-hourly readings, was contrary to the c/p performance warranty. A period of less than a full day was insufficient in order to calculate the vessel's performance and in particular unjustly benefitted Charterers as no accurate allowance was made for currents during periods between the six-hourly entries. Therefore, Owners were entitled to a refund of Charterers' deduction from hire.”

“Charterers made a deduction from hire on the grounds of an underperformance claim under a cp on a NYPE 1993 form. The Tribunal found that the deduction was unlawful as it constituted a breach of clause 46 of the cp, pursuant to which "Charterers are entitled to deduct from last sufficient hire payments only value of bunkers on redelivery...". Charterers' argument that the clause dealt only with bunkers adjustments but did not preclude equitable set-off of performance claims was rejected. In fact, it was held that the purpose of the clause was to protect Owners from possible iniquitous ad hoc deductions disguised as equitable set off and if Charterers had a performance claim, they should have claimed damages independently.”

“The Commercial Court held that the "actionable fault" defence under Rule D of the York Antwerp Rules is available to the issuer of a General Average guarantee in the standard wording approved by the Association of Average Adjusters and the Institute of London Underwriters. Under this form, the guarantor has the obligation to "... pay any contributions to General Average ... which may hereafter be ascertained to be properly due ...". The Court found that the word "due" means the same as legally owing or payable; but GA does not become owing or payable unless and until a court rules on the merits of a Rule D defence ("properly"). This conclusion was meant to be in accordance with the settled practice and understanding of the shipping industry such that only very clear wording could justify departing from it.”

“Following the sale of a Capesize bulk carrier for demolition only and despite their undertaking not to trade her further, buyers continued to trade the vessel sought the lifting of the covenant. Sellers rejected that request (as the purpose of the sale was to reduce oversupply in the market) and sued for compensation, including 'negotiating damages' being a sum of money as might reasonably have been demanded by them in exchange for permitting the continuation of the breach of the covenant. The Commercial Court rejected the claim, holding that the undertaking not to trade was akin to a non-compete obligation which did not fall within the category of cases where 'negotiating damages' were available as a measure of a sellers' loss.”