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'''Summary'''
The disponent owners of the vessel were not in anticipatory repudiatory breach of a three-year time charter where, contrary to the terms of that time charter, the head charter was subject to required the consent of the head owners’ consent owners for Gulf of Aden transits, as the disponent owners had not thereby expressed, or been deemed to have expressed, an intention not to perform the charter. The charterers were not thereby so substantially deprived of the whole value of that their charter, when set in the context of the background circumstances, that the charterer they could treat itself themselves as discharged from further performance.
Case note contributed by Jim Leighton, LLM (Maritime Law), LLB (Hons), BSc (Hons), Solicitor of England & Wales, and International Contributor to DMC’s Case Notes
The Charter was concluded while the vessel was under construction in the Philippines with anticipated delivery in July 2011. The Charter by clause 8 provided in the usual way for the Master to be under the orders and directions of the Charterers as regards the vessel’s employment.
The Charter contained a Conwartime 2004 clause and an amended BIMCO piracy clause. Paragraphs (a)-(b) of that the Piracy clause were deleted, reflecting the market practice where the intention was to allow the vessel to transit the Gulf of Aden (“GOA”) without the owners’ consent, called “GOA OK”. This offered a competitive advantage over vessels for which owners’ consent was required – the evidence put the value of that advantage at about USD1,250 per day. Charterers had made clear during negotiations that failure to agree to the GOA OK status was a deal breaker.
The head charter was subject to the head owners’ consent to transit GOA. This led to problems around the time of delivery in July 2011 as Owners made clear under the Charter that compliance with GOA transit orders or directions would be subject to head owners’ prior consent in each instance.
