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'''Summary'''
The UK Supreme Court, in upholding the decisions of the High Court [[https://www.onlinedmc.co.uk/index.php/Herculito_Maritime_Ltd_v_Gunvor_International_BV]] and the Court of Appeal [[https://www.onlinedmc.co.uk/index.php/Herculito_Maritime_v_Gunvor_International_-_The_Polar]], dismissed bill of lading holders’ appeal against their liability to contribute in general average to the ransom payment made to pirates, who had seized the vessel whilst she was in transit in the Gulf of Aden, for the release of the vessel and her cargo. Although the Gulf of Aden and War Risk clauses in the voyage charterparty were incorporated into the bills of lading, they did not – as a matter of interpretation – exclude the bill of lading holders from such a liability. This conclusion was based on the grounds that there was no insurance “code” or “fund” arrangement under the voyage charterparty as between the shipowners and the charterers, whereby the charterers, by reimbursing the owners for the war risk premia, became joint insureds under the war risk policies, with the result that the owners could not recover from them losses insured under those policies. Even if there were such a "code " or "fund", there was no necessity to manipulate/change the language of those clauses to substitute references to the bill of lading holders in place of the references to the charterers therein.
This judgment, just like the High Court and the Court of Appeal decisions, undoubtedly comes to the right conclusion, based on the application of the general principles relevant to the issues in contention.
The discussion on the first issue notably – and most helpfully, given the current issues being grappled with on whether or not vessels are obliged to proceed via the Suez Canal, necessitating the transit of the Gulf of Aden/Bab-el-Mandab/Red Sea – approved the Court of Appeal decision in The “Product Star” (fn.3) and the ;obiter (non-binding) comments of Teare J at paragraph [17] in The “Paiwan Wisdom” (fn.4).
The result of those two judgments having been endorsed is seemingly that, in principle, where owners have agreed that the vessel will transit via the Suez Canal and charterers are to pay the additional War Risk insurance premia, if a different war risk materialised in the Gulf of Aden, or there were a change in the nature of the war risk or a change in the degree of the war risk sufficient to make it qualitatively different, compared to that at the time when the charter was fixed, then it may be that a CONWARTIME or similar clause could be lawfully relied upon by owners to refuse to proceed via the Suez Canal. But this would not be so if there had been no change in war risk between the time of fixing and that when the vessel had to proceed.
