Orders were placed for the construction of ships. They were not delivered. The buyer, the defendant, cancelled the orders. The defendants sought the loss of profit. The claimants said they were entitled only to the repayment of instalments. The arbitrator found in favour of the purchaser. The yard appealed successfully. The purchaser now appealed in turn.
Held: The appeal was allowed, and the arbitrator’s award re-instated. The contract provided for termination for a major breach, and liquidated damages, but that was not this situation. The parties had intended the schedule to provide a remedy additional to those that would ordinarily be available to Gearbulk on termination of the contract. The yard’s breaches amounted to a repudiation. A repudiation may be shown to have been accepted even where a contract comes to an end under an express right to terminate
Moore-Bick LJ said: ‘but where the contract provides a right to terminate which corresponds to a right under the general law (because the breach goes to the root of the contract or the parties have agreed that it should be treated as doing so) no election is necessary. In such cases it is sufficient for the injured party simply to make clear that he is treating the contract as discharged . .’
Ward LJ, Smith LJ, Moore-Bick LJ
[2009] EWCA Civ 75, [2010] QB 27, [2009] CILL 2708, [2009] BLR 196, [2009] 1 Lloyds Rep 461, [2009] 1 CLC 134, [2009] 3 WLR 677
Bailii
Arbitration Act 1996
England and Wales
Citing:
Cited – Hong Kong Fir Shipping Co v Kawasaki Kisen Kaisha Ltd CA 20-Dec-1961
The plaintiffs had recently acquired the ship the ‘Hong Kong Fir’ and contracted to charter it to the defendants, but being late in delivering it, the defendants cancelled the charterparty contract. The plaintiffs said the repudiation was wrongful, . .
Cited – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Modern Engineering (Bristol) Ltd v Gilbert Ash (Northern) Ltd HL 1974
The court considered how to construe a clause in a contract which excluded a remedy provided by law. Lord Diplock said: ‘It is, of course, open to parties to a contract . . to exclude by express agreement a remedy for its breach which would . .
Cited – Lockland Builders v Rickwood 1995
A contract for the construction of a house gave the building owner the right to determine the contract if the rate of progress, materials or workmanship proved unsatisfactory as certified by an independent third party and the building contractor . .
Cited – Latvian Shipping Company and Others v Stocznia Gdanska Sa CA 21-Jun-2002
A payment condition was just that and that a failure to pay entitled the seller to terminate at common law. Rix LJ said: ‘It is established law that, where one party to a contract has repudiated it, the other may validly accept that repudiation by . .
Appeal from – Stocznia Gdynia Sa v Gearbulk Holdings Ltd ComC 2-May-2008
The claimants sought damages for repudiatory breach of three contracts to construct ships. . .
Distinguished – United Dominions Trust Limited v Ennis CA 1968
The defendant, a waterman in the Port of London, entered into a hire-purchase contract with the claimant finance company in respect of a motor car. After the first instalment, his wages were reduced by a dock strike. He wrote with the keys and log . .
Cited – Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (The Kanchenjunga) HL 1990
A ship was caught in harbour when an air raid broke out. The master took the ship to sea where it suffered damage.
Held: The shipowners were protected by a war risks clause in the charterparty agreement. As to waiver by election, Lord Goff of . .
Cited – Photo Production Ltd v Securicor Transport Ltd HL 14-Feb-1980
Interpretation of Exclusion Clauses
The plaintiffs had contracted with the defendants for the provision of a night patrol service for their factory. The perils the parties had in mind were fire and theft. A patrol man deliberately lit a fire which burned down the factory. It was an . .
Cited – Campbell Discount Company Ltd v Bridge HL 1962
The parties disputed the validity of a clause in a car hire contract relating to the consequences of a breach.
Held: (Majority) The agreement had been terminated by breach rather than by the exercise of an option, so that the stipulated . .
Cited – Lep Air Services v Rolloswin Investments Ltd; Moschi v LEP Air Services HL 1973
The obligation of a guarantor under a contract ‘is not an obligation himself to pay a sum of money to the creditor, but an obligation to see to it that another person, the debtor, does something.’ When a repudiatory breach is accepted by the injured . .
Cited – Harbutt’s Plasticine Ltd v Wayne Tank and Pump Co Ltd CA 1970
The plaintiffs’ factory in an old mill, burned down because Wayne Tank had installed a pipeline made of unsuitable and dangerous plastic material and wrapped in heating tape attached to a useless thermostat. It had been switched on and the plant . .
Cited – Dalkia Utilities Services Plc v Celtech International Ltd ComC 27-Jan-2006
The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the . .
Cited by:
Cited – Geldof Metaalconstructie Nv v Simon Carves Ltd CA 11-Jun-2010
The parties contracted for the supply and installation of pressure vessels by Geldof (G) for a building constructed by Simon Carves (SC). The contract contained a clause denying the remedy of set-off. G sued for the sale price, and SC now sought an . .
Cited – Force India Formula One Team Ltd v Etihad Airways PJSC and Another QBD 4-Nov-2009
force_india_etihadQBD2009
The parties had entered into a sponsorship agreement, with the claimants undertaking to display the name of the defendants on their car. After the agreement, the claimant company had been taken over by parties with interests competing with those of . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 11 November 2021; Ref: scu.282632