Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd which was held in 1961 is a landmark case in English contract law area. The Court of Appeal held that the "seaworthiness" term was not breached in a sufficiently serious way to entitle the charterer to terminate. This too was a judgment on demurrer but the principle was the same when the substance of the matter was in issue. Case: Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7 Key terms: Square pegs and round holes Walker Morris LLP | The Commercial Litigation Journal … Cases - Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd Record details Name Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd Date [1962] Citation 2 QB 26 CA Legislation. City University of Hong Kong Ship owners let the vessel, Hongkong fir, to charterers for a period of 24 months. It introduced the concept of innominate terms, a category between "warranties" and "conditions". The problems developed with the engine of the ship and the engine crew were incompetent. The Court created a third class of contractual term outside of warranties and conditions However the crew were both insufficient in number and incompetent to maintain her old-fashioned machinery; and the chief engineer was a drunkard. ... the vessel is delivered and placed at the disposal of the charterers... at Liverpool... she … This chapter discusses the decision of the Court of Appeal in Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, The Hong Kong Fir [1962] 2 QB 26, one of the most important English contract cases … Hongkong Fir Shipping Co. Ltd. v. Kawasaki Kisen Kaisha Ltd., the Hongkong Fir (1961) Charles Mitchell and Paul Mitchell (eds), Landmark Cases in the Law of Contract (Hart 2008) 269-297 31 … By this time, barely seventeen months of the two-year time-charter remained. Nolan, Donal, Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd, the Hongkong Fir (May 30, 2008). The problems in what event will a party to a contract be relieved of his undertaking to do that which he has agreed to do but has not yet done? Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7 is a landmark English contract law case. 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. In this analysis of the Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd (1962) Kawasaki chartered the Hong Kong Fir from Hong Kong Fir Shipping Co for 24 months. There are, however, many contractual undertakings of a. more complex character which cannot be categorised as being "conditions" or "warranties" if the late nineteenth century meaning adopted in the Sale of Goods Act, 1893, and used by Lord Justice Bowen in Bensen v Taylor Sons & Co[15] be given to those terms. It introduced the concept of innominate terms, a category between "warranties" and "conditions". Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7 is a landmark English contract law case. "Seaworthiness" is defined both by common law and by statute. This case document summarizes the facts and decision in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, Court of Appeal. An intermediate term is a term of a contract that may give rise to a right of termination for breach depending on how serious the consequences are. Ship owners let the vessel, Hongkong fir, to charterers for a period of 24 months. 16th Jul 2019 Do you have a 2:1 degree or higher? Clause 1 of the contract obliged the owners to deliver a “seaworthy” vessel and Clause 3 further obliged them to maintain the vessel’s seaworthiness and good condition. It can be broken by the presence of trivial defects easily and rapidly remediable as well as by defects which must inevitably result in a total loss of the vessel. (1) The test whether the event relied upon has this consequence is the same whether the event is the result of the other party's breach of contract or not, as Mr. Justice Devlin pointed out in Universal Cargo Carriers Corporation v Citati. 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". In the earlier cases before the Common Law Procedure Act 1852, the 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. [14] (2) The question whether an event which is the result of the other party's breach of contract has this consequence cannot be answered by treating all contractual undertakings as falling into one of two separate categories: "conditions" the breach of which gives rise to an event which relieves the party not in default of further performance of his obligations, and "warranties" the breach of which does not give rise to such an event. In short, the test for whether or not one may repudiate has now become, "does the breach deny the claimant the main benefit of the contract?" This test is applicable whether or not the event occurs as a result of the default of one of the parties to the contract, but the consequences of the event are different in the two cases. Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd 2 QB 26 A ship was chartered to the defendants for a 2 year period. Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [1962] 2 QB 26 Court of Appeal A ship was chartered to the defendants for a 2 year period. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant and shall not plead it as a condition precedent". This case document summarizes the facts and decision in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, Court of Appeal. Under the English sale of goods principles, a condition is a term whose breach entitles the injured party to repudiate the contract,[1] but a breach of warranty shall give rise only to damages. For instance, to take Baron Bramwell's example in Jackson v. Union Marine Insurance itself (at page 142), breach 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. Company Registration No: 4964706. Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and do not reflect the views of LawTeacher.net. The ship in fact was not in good condition, and its repairs caused a lot of delays for the Defendant. And such a stipulation, unless the parties have agreed that breach of it shall not entitle the non-defaulting party to treat the contract as repudiated, is a "condition". The document also includes supporting commentary from author Nicola Jackson. Facts. The plaintiffs said the repudiation was wrongful, and that the ship was fit to charter. Diplock LJ's judgment went as follows: Every synallagmatic contract contains in it the seeds of the problems In what event will a party be relieved of his undertaking to do that which he has agreed to do but has not yet done? A glance at the decision in Hong Kong Fir Shipping v Kawasaki Kisen Kaisha Ltd (1961) 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 on his part that constituted conditions precedent to the defendant's undertaking for non-performance of which the action was brought. Both under the common law and under the Hague-Visby Rules, the term "seaworthiness" covers not just the ship itself, but its crew, its provisions and equipment, and its suitability for both the cargo and the voyage. This chapter discusses the decision of the Court of Appeal in The Hongkong Fir, one of the most important English contract cases of the 20th century. "which hold that, where the shipowner has not merely broken his contract, but has so broken it that the condition precedent is not performed, the charterer is discharged. There was a charter-party between the plaintiff who was the owner of the vessel called Hongkong Fir and the defendant who was the charterer. In Jackson v Union Marine Insurance there was no breach of the express warranty; but if there had been, to engraft the implied condition upon the express warranty would have been merely a more complicated way of saying that a breach of a shipowner's undertaking to sail with all possible dispatch may, but will not necessarily, give rise to an event which will deprive the charterer of substantially the whole benefit which it was intended that he should obtain from the charter. Other phrases expressing the same idea were used by other judges in the cases which have already been cited by Lord Justice Sellers, and I would only add to his comments upon them that when it is borne in mind that until the latter half of the nineteenth century the only event that could be relied upon to excuse performance by one party of his undertakings was a default by the other party no importance can be attached to the fact that in occasional cases, and there may be others besides Freeman v. Taylor (1831) 8 Bingham page 124 , the Court has referred to the object or purpose of the party not in default rather than to the object or purpose of the contract, for the relevant object or purpose of the party not in default is that upon which there has been a consensus ad idem of both parties as expressed in the words which they have used in their contract construed in the light of the surrounding circumstances. Also the innocent party may well be liable for wrongful repudiation if they treat the contract as at an end where it is found that the breach did not deprive them of substantially the whole benefit of the contract. In the earliest cases such as Pordage v Cole[8] and Thorpe v Thorpe[9] the question whether an undertaking was a condition precedent appears to have turned upon the verbal niceties of the particular phrases used in the written contract and it was not until 1773 that Lord Mansfield, in the case, which is a legal landmark, Boone v Eyre,[10] swept away these arid technicalities. Firstly, the Court held that in order to construe whether a contractual clause constitutes a condition precedent, the breach of which permits repudiation, or an innominate term, the breach of which permits damages, depends on a holistic assessment of the contract’s surrounding circumstances in determining the intention of the parties in their treatment of the clause. In 1874 when the doctrine of frustration was being foaled by "impossibility of performance" out of "condition precedent" it is not surprising that the explanation given by Baron Bramwell should give full credit to the dam by suggesting that in addition to the express warranty to sail with all possible dispatch there was an implied condition precedent that the ship should arrive at the named port in time for the voyage contemplated. Where the event occurs as a result of the default of one party the party in default cannot rely upon it as relieving himself of the performance of any further undertakings on his part and the innocent party, although entitled to, need not treat the event as relieving him of the performance of his own undertakings. A glance at the decision in Hong Kong Fir Shipping v Kawasaki Kisen Kaisha Ltd (1961) However, the trial judge found that this breach was not substantial enough to entitle the charterer to repudiate the contract. In this analysis of the On arrival at Osaka, a further fifteen weeks of repairs were needed before the ship was seaworthy again. The charter provided '1. Copyright © 2003 - 2020 - LawTeacher is a trading name of All Answers Ltd, a company registered in England and Wales. On the voyage from Liverpool to Osaka, the engines suffered several breakdowns, and was off-hire for a total of five weeks, undergoing repairs. The problem was the delay element; one had to "wait and see" the effect of the breach. Hongkong Fir Shipping Co. Ltd. v. Kawasaki Kisen Kaisha Ltd., the Hongkong Fir (1961) by Donal Nolan :: SSRN. Kawasaki repudiated the contract, and Hong Kong Fir sued for wrongful repudiation. HONGKONG FIR SHIPPING COMPANY, LTD. v. KAWASAKI KISEN KAISHA, LTD. (THE "HONGKONG FIR") [1961] 2 Lloyd's Rep. 478 COURT OF APPEAL Before Lord Justice Sellers, Lord … Condition Term that goes to root of the contract And so it should though he has such an excuse that no action lies". In this an. Hongkong Fir Shipping Company Ltd v Kawasaki Kisen Kaisha Ltd “the Hong Kong Fir” [1961] 1 Lloyd’s Rep 159; [1961] 2 Lloyd’s Rep 478 By michael Posted on August 3, 2011 Maritime Baltime charterparty – vessel unseaworthy – charterers not entitled to cancel We also have a number of sample law papers, each written to a specific grade, to illustrate the work delivered by our academic services. Hong Kong Fir Shipping v Kawasaki Kisen Kaisha [1962] 2 QB 26 (Case summary) This approach has been criticised for sacrificing certainty. Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26; [1962] 1 All ER 474, considered Hunter Resources Ltd v Melville (1988) 164 CLR 234; [1988] HCA 5, considered Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348; [1992] FCA 624, cited Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, considered The vessel, Hongkong Fir and the chief engineer was a judgment demurrer. © 2003 - 2020 - LawTeacher is a trading name of All Answers,... 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