The case concerned a time charter trip on an amended NYPE form for a cargo of bulk wheat to Nigeria. The vessel, having arrived off Warri, was unable to berth and, amid piracy risk in the Gulf of Guinea, the owner ordered her away from the Warri anchorage back to Lagos for around three days before returning. The charterer argued the vessel was off-hire throughout that period; the owner said she remained on hire under the incorporated BIMCO Piracy Clause 2013 (clause 81).
The recap email incorporated the full BIMCO piracy clause but expressly deleted sub-clauses (a) and (b) – the provisions that would otherwise have given the owner an absolute right, exercisable on “reasonable judgement”, to refuse to proceed to or through, or to leave, an area dangerous due to piracy. Clause 81(c)(i), which was left untouched, separately entitled the owner to take “reasonable preventative measures” – including but not limited to re-routeing, using escorts, or adjusting speed or course – while remaining on hire.
The arbitrators found that the vessel’s departure to Lagos was a reasonable preventative measure within clause 81(c)(i), so the vessel remained on hire. Permission to appeal was granted on the basis the award was “obviously wrong”, but the substantive appeal was dismissed by HHJ Hodge KC.
The charterer’s central argument was that deleting sub-clauses (a) and (b) – the only provisions expressly conferring a right to leave a piracy-risk area – showed the parties’ objective intention that the vessel should have no such right at all, including under clause 81(c)(i). It also relied on the ejusdem generis principle, arguing the specific examples in 81(c)(i) were all measures taken within the area, and on bespoke Nigerian trading clause rights to leave Port Harcourt and Calabar (but not Warri) in specified circumstances.
The owner responded that clauses 81(a)/(b) and 81(c)(i) conferred distinct, non-overlapping suites of rights with different triggers and consequences: (a)/(b) gave an absolute right based on the master’s reasonable judgement of danger, with obligations on the charterer to issue alternative orders and provide an indemnity; clause 81(c)(i) instead required an actual (not merely apprehended) risk of piracy and reasonableness of the specific measure taken, with no equivalent indemnity. On that basis, deleting (a)/(b) simply removed the absolute right, leaving the narrower, conditional right in 81(c)(i) untouched.
The court preferred the owner’s case and dismissed the appeal on two independent grounds:
First, applying the established principle that deleted words are only a legitimate aid to construction where the retained words are ambiguous, the court held that clause 81(c)(i) was clear on its own terms. “Reasonable preventative measures” was expressly “including but not limited to” the examples given, and there was no textual basis to confine it to measures taken within the piracy-risk area. Recourse to the deleted sub-clauses was therefore unnecessary and impermissible.
Second, even if regard could properly be had to the deletions, the court agreed that sub-clauses (a)/(b) and (c) conferred materially different rights – the former an absolute right triggered by reasonable judgement and carrying charterer obligations, the latter a conditional right dependent on actual risk and factual reasonableness. Removing the former did not imply an intention to exclude the latter’s ordinary scope.
The court also rejected the ejusdem generis argument, noting the “including but not limited to” wording is a recognised device for signalling that a list is illustrative rather than limiting, and found no coherent genus capable of excluding departures from the area. The Nigerian trading clause rights for Port Harcourt and Calabar were held to be a separate, additional suite of rights tied to congestion scenarios, not a partial reinstatement of the deleted sub-clauses, and so had no bearing on the meaning of clause 81(c)(i).
Commercial common sense also favoured the owner’s construction: it would be anomalous for a vessel taking preventative measures within a piracy-risk area to remain on hire, but to go off-hire the moment equivalent measures took her just outside an undefined and potentially very large “Area”.
This decision is a useful reminder that deleting parts of a standard-form clause will not automatically taint the meaning of the sub-clauses left behind, particularly where those sub-clauses address a different trigger and a different set of consequences.
Parties negotiating BIMCO piracy, war risks, and off-hire provisions should consider expressly addressing what is intended to happen if only part of a composite clause is amended, rather than relying on inference from the deletion itself. The judgment also confirms the high threshold for successful section 69 appeals: tribunals are not required to recite settled principles of construction, and considerable deference is given to experienced arbitrators on questions of contractual interpretation within their specialist field.