|
''Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd'' () (EWCA Civ 7 ) is a landmark English contract law case. It introduced the concept of innominate terms, a category between "warranties" and "conditions". Under the English sale of goods principles, a condition is a term whose breach entitles the injured party to repudiate the contract,〔Sale of Goods Act 1979 s 11〕 but a breach of warranty shall give rise only to damages.〔 Sale of Goods Ac 1979 section 62〕 In this case, Diplock LJ proposed that some terms could lead ''either'' to the right to terminate a contract as a remedy, ''or'' to the mere entitlement to damages (without a right to terminate). What mattered was not whether a particular contract term was called a "warranty" or a "condition", but how serious was the breach of the term. 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?" However, modern commercial custom has since established that some breaches, such as failure to meet a "notice of readiness to load" a sea cargo, will ''always'' be repudiatory.〔''The Mihailis Angelos'' () 1 QB 164〕 ==Facts== Hong Kong Fir Shipping hired out their elderly ship,〔"a 25-year-old vessel called the "Antrim", which they renamed the "Hong Kong Fir", of some 5395 tons gross and 3145 tons net register"〕 the "Hong Hong 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. A term in the charterparty agreement required the ship to be seaworthy and to be "in every way fitted for ordinary cargo service." However the crew were both insufficient in number and incompetent to maintain her old-fashioned machinery; and the chief engineer was a drunkard. On the voyage from Liverpool to Osaka, the engines suffered several breakdowns, and was off-hire for a total of five weeks, undergoing repairs. On arrival at Osaka, a further fifteen weeks of repairs were needed before the ship was seaworthy again. By this time, barely seventeen months of the two-year time-charter remained. Once in Osaka, market freight rates fell, and Kawasaki terminated the contract citing Hong Kong's breach. Hong Kong responded that Kawasaki were now the party in breach for wrongfully repudiating the contract. 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. However, the trial judge found that this breach was not substantial enough to entitle the charterer to repudiate the contract. Kawasaki appealed. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd」の詳細全文を読む スポンサード リンク
|