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'''NYPE 1993 FORM TIMECHARTER: FAILURE TO PAY HIRE ON TIME: WHETHER BREACH OF CONDITION: WHETHER BREACH OF AN INNOMINATE TERM: RIGHT TO CLAIM DAMAGES FOR LOSS OF BARGAIN: WHETHER CHARTERER’S CONDUCT AMOUNTED TO REPUDIATORY BREACH OF CONTRACT'''
'''Note: this decision has been upheld by the Court of Appeal on 7 October 2016 - see Grand China Logistics Holding (Group) Co Ltd v Spar Shipping AS [2016] EWCA Civ 982. [[http://www.onlinedmc.co.uk/index.php/Spar_Shipping_v_Grand_China_Logistics_Holding_Group]] In its decision, the Court of Appeal held also that the case of "The Astra" - Kuwait Rocks Co v AMN Bulkcarriers Inc [2013] EWHC 865 (Comm) - was wrongly decided on the 'condition' point.'''
'''Summary'''
(1) the very inclusion of the contractual right to withdraw on any breach suggested that in its absence there would be no such
(2) stipulations as to the time of payment would not be treated as conditions unless the contract indicated otherwise;
(3) breaches might range from the trivial to the serious so classification as an innominate term would be natural;
(4) in the absence of the express right to terminate, it was inconceivable that the parties would be taken to have intended a delay of a few minutes in the payment of hire to entitle an owner to withdraw the vessel from a long-term time charter.
(5) Considerations of commercial certainty did not suggest any different conclusion: “certainty is a desideratum which must be counterbalanced with the need not to impose liability for a trivial breach in undeserving case”; and, in any event, for many years prior to The "Astra", commercial parties had continued to contract on the basis of NYPE, Baltime and Shelltime without amending them to make it clear that the obligation was a condition.
As to the presence of an anti-technicality clause, which Flaux J treated as putting the matter beyond any real doubt, the judge said:
