Voyage Charterparty
Charterer’s Duties
The charterer’s duties under a voyage charter are:
- To nominate port of loading and discharging;
- To provide the goods for loading and
- To load and later to discharge them at the discharging port.
Breach any of these obligations will not give to the shipowner right to rescind the charter but only sue for damages, unless such breach is of frustrating character (read more on Frustration).
If, however, by words or conduct the charterer professes inability to perform the charter, that is sufficient to constitute an anticipatory breach which the shipowner has an election to accept the repudiation and bring the contract to an end or to affirm the contract. When the shipowner choses to rescind charter it will be irrelevant whether or not the charterer was able to perform.
Sometimes, inability to perform can be masked by attempts to engineer a "mutual termination" of the charter on a "drop hands" basis. And although in commercial terms there is nothing wrong with that goal, but words and conduct of the charterer in seeking to achieve that goal were held to amount to a renunciation of the charterparty in SK Shipping (S) PTE Ltd v Petroexport Ltd [2009] EWHC 2974 (Comm). Flaux J stated at para 96:
It seems to me that there is an analogy to be drawn between renunciation and (non-fraudulent) misrepresentation. Just as a claimant must show both actual reliance on or inducement by a misrepresentation as well as that such reliance or inducement was objectively reasonable, so it seems to me a claimant who contends that the defendant has renounced the contract should have to show not only that the words or conduct were objectively evincing an intention not to perform but that the claimant subjectively believed that to be the case.
Case-law definitions: Qualified Obligations | Strict Obligation | Rescission | Anticipatory Breach | Frustration | Repudiation
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