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.
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.
It is like so many other contractual terms an undertaking one breach of which may give rise to an event which relieves the charterer of further performance of his undertakings if he so elects and another breach of which may not give rise to such an event but entitle him only to monetary compensation in the form of damages.
It was to sail in ballast from Liverpool to collect a cargo at Newport News, Virginia, and then to proceed via Panama to Osaka. It embraces obligations with respect to every part of the hull and machinery, stores and equipment and the crew itself.
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". The question which the learned judge had to ask himself was, as he rightly decided, whether or not at the date when the charterers purported to rescind the contract, namely 6th June,or when the shipowners purported to accept such rescission, namely 8th August,the delay which had already occurred as a result of the incompetence of the engine room staff, and the delay which was likely to occur in repairing the engines of the vessel and the conduct of the shipowners "by that date in taking steps to remedy these two matters, were, when taken together, such as to deprive the charterers of substantially the whole benefit which it was the intention of the parties they should obtain from further use of the vessel under the charter-party.
Hong Kong responded that Kawasaki were now the party in breach for wrongfully repudiating the contract. It was early recognised that contractual undertakings were of two different kinds; those collateral to the main purpose of the parties as expressed in the contract and those that were mutually dependent so that the non-performance of an undertaking of this class was an event that excused the other party from the performance of his corresponding undertakings.
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.
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 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.
The problem was the delay element; one had to "wait and see" the effect of the breach. 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".
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.
Diplock LJ 's judgment went as followed. There are, however, many contractual undertakings of a. 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 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.
This is only a specific application of the fundamental legal and moral rule that a man should not be allowed to take advantage of his own wrong. Dec 01, · Upload failed. Please upload a file larger than x pixels; We are experiencing some problems, please try again. You can only upload files of type PNG, JPG or holidaysanantonio.com: Resolved.
On account of various delays which the learned judge has found case, the inadequacy and incompetence of the engine-room staff had been known to them, the charterers could Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd  holidaysanantonio.comL.R.
12/20 ". 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: Hong Kong Fir Shipping hired out their elderly ship, the "Hong Kong Fir", under a two-year time charter-party to Kawasaki Kisen Kaisha.
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In this case, the clause of good condition can only be seen as intermediate - obviously there could be a lot of small defects which would be easily dealt with and not .Account of the hong kong fir shipping case