Golden strait corpn v nippon yusen kubishika kaisha 2007 ukhl - Essay Example

During this time, the question of the Gulf war breaking out was only a possibility rather than a certainty. While the charterers were appealing this decision, they made an offer to accept the vessel back on the same terms as before, on 7 February, 2003. The owners rejected the offer of the charterers on the basis of para 10 of the agreement where provision was made for cancellation by both parties in the event of a war. By 2003, the situation had changed from what it was in 2001; the question of war was a certainty, not a possibility.

Hence, the charterers were allowed to limit damages up to 2003, since the charter would have been cancelled anyway when the war broke out. The owner appealed for damages.2 The majority opinion in this case supported the position of the charterers and allowed for damages to be calculated only up 2003. The principles of certainty and finality of contract were held to be subordinate to the greater importance of achieving an accurate assessment of damages based on actual losses incurred.3 The major grounds on which Lord Bingham and Lord Walker offered dissenting opinions in this case was that of (a) certainty of contract and (b) the date of calculation of damages on the date of repudiation4.

Lord Bingham stated that contracts are made to be performed, not broken; as a result it should be more advantageous to keep to contractual terms rather than break them. The original contract called for a charter period of seven years, hence when the parties entered into the contract, there was an implication of certainty in the contract which made breaking the contract a losing proposition for either party. There was a war clause included in the contract, allowing either party to rescind the contract if there was a strong possibility of war breaking out.

However, this element of uncertainty by no means detracted from the performance of the contract that was required as of 2001, when the charterers chose