Account of the hong kong fir shipping case

The Hong Kong Fir confirmed that the term "seaworthiness" has a very broad meaning ranging from trivial defects like a missing life preserver or a major flaw that would sink the ship. So too there may be other simple contractual undertakings of which it can be predicated that no breach can give rise to an event which will deprive the party not in default Account of the hong kong fir shipping case substantially the whole benefit which it was intended that he should obtain from the contract; and such a stipulation, unless the parties have agreed that breach of it shall entitle the non-defaulting party to treat the contract as repudiated, is a "warranty".

As my "brethren have already pointed out, the shipowner's undertaking to tender a seaworthy ship has, as a result of numerous decisions as to what can amount to "unseaworthiness", become one of the most complex of contractual undertakings.

Union Marine Insurance itself at pagebreach of an undertaking by a shipowner to sail with all possible dispatch to a named port does not necessarily relieve the charterer of further performance of his obligation under the charter-party, but if the breach is so prolonged that the contemplated voyage is frustrated it does have this effect.

In the nomenclature of the eighteenth and early nineteenth centuries undertakings of the latter class were called "conditions precedent" and a plaintiff under the rules of pleading had to aver specially in his declaration his performance or readiness and willingness to perform all those contractual undertakings Account of the hong kong fir shipping case his part that constituted conditions precedent to the defendant's undertaking for non-performance of which the action was brought.

In McFadden v Blue Star Lines [] 1 KB it was stated that, to be seaworthy, a vessel must have the degree of fitness that an ordinarily careful and prudent shipowner would require his vessel to have at the commencement of a voyage, having regard to all possible circumstances.

What the learned judge had to do in the present case as in any other case where one party to a contract relies upon a breach by the other party as giving him a right to elect to rescind the contract, was to look at the events which had occurred as a result of the breach at the time at which the charterers purported to rescind the charter-party and to decide whether the occurrence of those events deprived the charterers of substantially the whole benefit which it was the intention of the parties as expressed in the charter-party that the charterers should obtain from the further performance of their own contractual undertakings.

Union Marine Insurance 10 Common Pleas pagethat it was recognised that it was the happening of the event and not the fact that the event was the result of a breach by one party of his contractual obligations that relieved the other party from further performance of his obligations.

Hong Kong Fir Shipping Co. Ltd. v Kawasaki Kisen Kaisha Ltd.

Edit Diplock, writing for a unanimous court, states that the test does not always depend on whether the thing that was breached was a warranty or a condition, as sometimes the circumstances are more complex than this.

A term in the charterparty agreement required the ship to be seaworthy and to be "in every way fitted for ordinary cargo service. At first instance, it was held that although the ship was a seaworthy vessel on delivery in Liverpool, Hong Kong Fir had not exercised due diligence to maintain the vessel in an efficient and seaworthy state.

In my view, in his judgment - on which I would not seek to improve - the learned judge took into account and gave due weight to all the relevant considerations and arrived at the right answer for the right reasons.

What the learned judge had to do in the present case as in any other case where one party to a contract relies upon a breach by the other party as giving him a right to elect to rescind the contract, was to look at the events which had occurred as a result of the breach at the time at which the charterers purported to rescind the charter-party and to decide whether the occurrence of those events deprived the charterers of substantially the whole benefit which it was the intention of the parties as expressed in the charter-party that the charterers should obtain from the further performance of their own contractual undertakings.

The problem was the delay element; one had to "wait and see" the effect of the breach. If it is not a condition precedent, what matters it whether it is unperformed with or without excuse?

What the learned judge had to do in the present case as in any other case where one party to a contract relies upon a breach by the other party as giving him a right to elect to rescind the contract, was to look at the events which had occurred as a result of the breach at the time at which the charterers purported to rescind the charter-party and to decide whether the occurrence of those events deprived the charterers of substantially the whole benefit which it was the intention of the parties as expressed in the charter-party that the charterers should obtain from the further performance of their own contractual undertakings.

Where mutual covenants go to the whole of the consideration on both sides they are mutual conditions, the one precedent to the other. But not arriving in time for the voyage contemplated, but at such a time that it is frustrated is not only a breach of contract, but discharges the charterer.

The test whether an event has this effect or not has been stated in a number of metaphors all of which I think amount to the same things Does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings?

And the Marine Insurance Act s 39 4 provides that "a ship is deemed to be seaworthy when she is reasonably fit in all respects to encounter the ordinary perils of the adventure insured. It is, with all deference to Mr. By this time, barely seventeen months of the two-year time-charter remained.

Ashton Roskill's contention that a different test is applicable when the event occurs as a result of the default of one party from that applicable in cases of frustration where the event occurs as a result of the default of neither party lies, in my view, from a failure to view the cases in their historical context.

The Hong Kong Fir confirmed that the term "seaworthiness" has a very broad meaning ranging from trivial defects like a missing life preserver or a major flaw that would sink the ship. Where mutual covenants go to the whole of the consideration on both sides they are mutual conditions, the one precedent to the other.

So too there may be other simple contractual undertakings of which it can be predicated that no breach can give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract; and such a stipulation, unless the parties have agreed that breach of it shall entitle the non-defaulting party to treat the contract as repudiated, is a "warranty".

Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd

In McFadden v Blue Star Lines [] 1 KB it was stated that, to be seaworthy, a vessel must have the degree of fitness that an ordinarily careful and prudent shipowner would require his vessel to have at the commencement of a voyage, having regard to all possible circumstances.

A term in the charterparty agreement required the ship to be seaworthy and to be "in every way fitted for ordinary cargo service. Now that the doctrine of frustration has matured and flourished for nearly a century and the old technicalities of pleading "conditions precedent" are more than a century out of date, it does not clarify, but on the contrary obscures, the modern principle of law where such an event has occurred as a result of a breach of an express stipulation in a contract, to continue to add the now unnecessary colophon "therefore it was an implied condition of the contract that a particular kind of breach of an express warranty should not occur.

In the earlier cases before the Common Law Procedure Actthe problem tends to be obscured to modern readers by the rules of pleading peculiar to the relevant forms of action-covenant, debt and assumpsit, and the nomenclature adopted in the judgments, which were mainly on demurrer, reflects this.

Not merely because the contract is broken. The test whether an event has this effect or not has been stated in a number of metaphors all of which I think amount to the same things Does the occurrence of the event deprive the party who has further undertakings still to perform of substantially the whole benefit which it was the intention of the parties as expressed in the contract that he should obtain as the consideration for performing those undertakings?

No doubt there are many simple contractual undertakings, sometimes express but more often because of their very simplicity "It goes without saying" to be implied, of which it can be predicated that every breach of such an undertaking must give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract.

Ashton Roskill's skilful argument, by no means surprising that among the many hundreds of previous cases about the shipowner's undertaking to deliver a seaworthy ship there is none where it was found profitable to discuss in the judgments the question whether that undertaking is a "condition" or a "warranty"; for the true answer, as I have already indicated, is that it is neither, but one of that large class of contractual undertakings one breach of which may have the same effect as that ascribed to a breach of "condition" under the Sale of Goods Act and a different breach of which may have only the same effect as that ascribed to a breach of "warranty" under that Act.

The fact that the emphasis in the earlier cases was upon the breach by one party to the contract of his contractual undertakings, for this was the commonest circumstance in which the question arose, tended to obscure the fact that it was really the event resulting from the breach which relieved the other party of further performance of his obligations; but the principle was applied early in the nineteenth century and without analysis to cases where the event relied upon was one brought about by a party to a contract before the time for performance of his undertakings arose but which would make it impossible to perform those obligations when the time to do so did arrive: On arrival at Osaka, a further fifteen weeks of repairs were needed before the ship was seaworthy again.

There are, however, many contractual undertakings of a.Applying the dicta of Diplock LJ in Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [] 2 QB 26, the Court of Appeal held that previous cases had used as the relevant test whether the breach had deprived the injured party of “substantially the whole benefit” of the contract, which is the same test as that applicable to frustration, so the.

Background facts. Plaintiff [Hongkong] owned a ship and chartered it to the Defendant [Kawasaki] A clause in the agreement guaranteed that the ship would be in good condition etc. Background facts. Plaintiff [Hongkong] owned a ship and chartered it to the Defendant [Kawasaki] A clause in the agreement guaranteed that the ship would be in good condition etc.

Hong Kong Fir agreed to rent their ship to Kawasaki for 24 months and stated on the date of delivery that the ship was fitted for use in ordinary cargo service.

However, due to the fact that the engine room staff was inefficient and the engines were very old, the ship was held up for 5 weeks Year: It looks like you've lost connection to our server. Please check your internet connection or reload this page.

Hong Kong Fir Shipping hired out their elderly ship, the "Hong Kong Fir", under a two-year time charter-party to Kawasaki Kisen Kaisha.

It was to sail in ballast from Liverpool to collect a cargo at Newport News, Virginia, and then to proceed via Panama to Osaka.

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Account of the hong kong fir shipping case
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