Law & Sea | Voyage Charters - Cancelling Clause http://www.lawandsea.net/CP_Voy/Charterparty_Voyage_Laycan_Can...

Law And Sea

I, indeed am Lord of the world, but the law is lord of the sea.
The Emperor Antoninus (138-161 A.D.)

HomeLaw & Sea

Carriage of Goods by SeaHVR, Bill Of Lading, Seaworthiness
Sale contracts, Incoterms
Time ChartersDelivery, Off-hire,
Punctual payments
Voyage ChartersLaycan, laytime,
demurrage
Contract LawEssentials
Masters BlogSafety at sea
Case LawCitations and
more
ContactGet in touch

Voyage Charters . Laycan. Cancelling Clause Last updated 22-May-2015

Next the cancelling clause. Its effect is that, although there may have been no breach by the owners nevertheless
the charterers are, for their own protection, entitled to cancel if the vessel is not delivered in a proper condition by
the cancelling date. That is the sole effect.
Per Lord Denning MR in Marbienes Compania Naviera S.A. v Ferrostaal A.G. (The Democritos) [1976] 2 Lloyds
Rep.149 at p.152.

Similares Images Annex Accordingly Annexe Anticipate Argument Arrived

Express contractual right to cancel

Cancelling clause stipulates the date by which the shipowner should present his vessel in required state of readiness.
The charterer has a right but not duty to exercise an option to cancel the charter should the vessel not be ready to
load on nominated date and time. See below Gencon94 clause 9.

1 de 6 13/03/2017 17:18
Law & Sea | Voyage Charters - Cancelling Clause http://www.lawandsea.net/CP_Voy/Charterparty_Voyage_Laycan_Can...

The wording of Gencon94 clause 9 is notable because it gives to the owners a right to request from the charterers
whether they will exercise their option to cancel in cases when the owners anticipate late arrival and that differ it
from other similar clauses in standard forms.

The right to cancel conferred on charterers by express wording gives them a right to terminate the
charterparty if the vessel is not ready even if an event has happened which frustrates the commercial
adventure. Such right does not depend on whether such later arrival was or was not a result of the
owners breach. As long as the owner uses reasonable diligence, he is not in breach, but the charterer
nevertheless is entitled to cancel. The clause therefore imposes an absolute obligation to the owners to
provide the vessel for the Charterers use by the cancelling date.

Cancelling Clause in Gencon form and similar clauses in other standard forms of voyage charters
operates solely to protect the charterers from consequences of late arrival of the vessel and being a
forfeiture clause it is not to be applied lightly, so that defects of no real significance in the adventure
were to be used as a means of throwing up a charter at the last moment. Accordingly, it is for the
charterers to establish that the right which they have sought to exercise under the cancelling clause has
accrued. When owners failure to provide the vessel in time was a result of the Charterers own breach
they, the charterers, may be deprived from reliance on cancelling clause.

The latest authority on this subject is decision of the Court of Appeal in Mansel Oil & VITOL S.A. v Troon Storage
Tankers SA [2009] EWCA Civ 425, where in the beginning of his judgment Lord Justice Longmore said at para 1:

The purpose of a cancelling clause in a voyage or time charterparty is to fix a definite date by which, if
the owners fail to deliver the vessel to the charterers, the charterers are entitled to wait no longer for the
vessel to be delivered. In the absence of a cancelling clause an owner would be in breach of charter for
failure to deliver on the contractual date but a charterer would not be able to treat the owner as being in
repudiatory breach of contract until the delay was such as to frustrate the commercial purpose of the
adventure. The length of that delay is notoriously difficult to agree or fix with any certainty and it is,
therefore, not surprising that parties to a voyage or time charter are ready to agree a cancelling date in
order to avoid all arguments about whether delay in delivery is such as to frustrate the adventure.

In Mansel Oil Ltd case the date of cancellation arose before the charterers gave nomination as to loading port, but at
the same time it was evident that the vessel was never going to be able to meet her cancelling date. The court held
that since the vessel was not in a deliverable state regardless of whether she was given orders to proceed to one or
other of the places referred to in the charterparty or not, it was not necessary for the charterers to have made a
nomination in order to be able to exercise a right of cancellation as it was futile to do so.

Summing up:

2 de 6 13/03/2017 17:18
Law & Sea | Voyage Charters - Cancelling Clause http://www.lawandsea.net/CP_Voy/Charterparty_Voyage_Laycan_Can...

the owners under absolute obligation to provide the vessel by the cancelling date and time
the charterers have a right but not duty to terminate contract
invocation of the cancellation clause is a drastic measure in case of delayed ships arrival therefore not to be
applied lightly
it terminates contract and leaves the shipowner liable for damages if he is in breach
in absence of cancellation provision charterers would have to wait until delay in arrival is so prolonged that it
frustrates the contract, thus both sides will be in uncertain position over estimation of whether delay is of
frustrating nature or not.
cancelling clause generally does not impose an absolute obligation on the owner that the vessel must be ready
for loading by the stipulated date and furthermore any such duty may be expressly qualified by obligations to
exercise due diligence to present the vessel in appropriate state of fitness.
if vessel is not an arrived ship she is not ready to load within the meaning of the cancelling clause of the
charterparty, therefore in the case of a berth charter, the vessel must actually be in berth to satisfy
requirements of clause.
8. A cancelling clause in a consecutive voyage charter may have the effect (if the option given be exercised)
of cancelling the whole charter and not merely one of the voyages under it.
9. Obligation to nominate port is not a pre-condition of the right to cancel. The charterers are obliged to
nominate port a) not so late as would mean that, because of the lateness of the nomination, the vessel could
not make her cancelling date; b) early enough to ensure that the vessel suffered no delay resulting from the
absence of nomination.

Share this article on: Like 3 Compartilhar Tweet

Readers comments:

Posted by:

Be first to comment

Leave your questions and comments here

Name:
Email (will not be published):
Comments

Privacy & Terms

3 de 6 13/03/2017 17:18
Law & Sea | Voyage Charters - Cancelling Clause http://www.lawandsea.net/CP_Voy/Charterparty_Voyage_Laycan_Can...

Although author encourages visitors to leave their comments using this form, but if you unable or unwilling to use it
for any reason you can forward your mail to info@lawandsea.net to contact with him.

Sub-chapters

Laycan

Cancelling Clause

State of Readiness

Premature cancellation

Notice to narrow or move the laycan

Cancelling date achievability

Laycan & Laytime

Related Articles

NOR and Laycan

Charterparty Laytime Definitions 1980

Charterparty Renunciation and Rescission

Case law

Smith v Dart & Son (1884) 14 QBD 105

Nelson & Sons v Dundee East Coast Shipping (1907) SC 927
Hudsons Bay Co. v Domingo Mumbru S.A. (1922) 10 Ll. L. Rep. 476
Ambatielos v Grace Brothers (1922) 13 Ll.L.R. 227
Marbienes Compania Naviera S.A. v Ferrostaal A.G. (The Democritos) [1976] 2 Lloyds Rep.149
Bulk Carriers Ltd v Andre Et Cie SA [2001] EWCA Civ 588
SHV Gas Supply and Trading SAS v Naftomar Shipping and Trading Co Ltd Inc [2005] EWHC 2528
(Comm)
Tidebrook Maritime Corporation v Vitol SA of Geneva (The Front Commander) [2006] EWCA Civ 944
Mansel Oil & VITOL S.A. v Troon Storage Tankers SA [2009] EWCA Civ 425
* reports available only for cases in italic font

Case Law Quotes

Cancelling clause

Laycan

4 de 6 13/03/2017 17:18
Law & Sea | Voyage Charters - Cancelling Clause http://www.lawandsea.net/CP_Voy/Charterparty_Voyage_Laycan_Can...

Laydays

Demurrage

Despatch (Dispatch)

Sunrise in Yellow Sea

Free high quality photos www.seaphotos.net!

Voyage C/P Clauses

Approval Clause

Cancelling Clause

In-Transit Loss (ITL) Clause

Cesser Clause

STS Lighering Clause

Standard sets of clauses in voyage charterparty contracts

Annexes

Newsletter
About
Disclaimer
Consulting
Links
Visitors:
663,693

Related links to visit

Ask your question on shipping law NOW!

Case law quotes on legal and maritime terms
Collection of famous law quotes
Sea photos - you must see it!

Nota Bene

" there is no contractual right to rescind a charterparty under the cancelling clause unless and until the date
specified in that clause has been reached."
Per Roskill J in Cheikh Boutros Selim El-Khoury and Others v Ceylon Shipping Lines Ltd. [1967] 2 Lloyds
Rep. 224, at p. 244.

5 de 6 13/03/2017 17:18
Law & Sea | Voyage Charters - Cancelling Clause http://www.lawandsea.net/CP_Voy/Charterparty_Voyage_Laycan_Can...

Copyright2007 - 2017 Igor Sterzhantov

6 de 6 13/03/2017 17:18