In Greatship (India) Limited -v- Oceanografia SA de CV  EWHC 3468 (Comm), the Commercial Court considered the interpretation of clause 10(e) of the BIMCO Supplytime 89 form. Specifically, the court considered the question of whether, in order for Owners to validly exercise their right to temporarily withdraw the vessel from the charterparty service, they were required to give Charterers five banking days’ notice of the suspension.
Clause 10(e) provided, in part, as follows:
 If payment is not received by Owners within 5 banking days following the due date Owners are entitled to charge interest … from and including the due date until payment is received.
 In default of payment … Owners may require Charterers to make payment of the amount due within 5 banking days of receipt of notification from Owners; failing which Owners shall have the right to withdraw the vessel…
 While payment remains due Owners shall be entitled to suspend the performance of any and all of their obligations hereunder…
Owners purported to suspend the provision of the vessel’s services for non-payment of hire, relying on part  above.
Owners submitted that the clause did not contain any express or implied requirement for notice to be given before they were entitled to exercise their right of suspension. There was no requirement for an advance notice. Charterers argued that it was an express or implied requirement of Clause 10(e) that Owners would give five banking days’ notice of their intention before exercising their right to withdraw the vessel (whether permanently or temporarily).
The arbitrators found in Charterers’ favour, holding that the grace period and express notification provisions in parts  and  of clause 10(e) governed part .
Court’s findings on appeal
The court allowed the appeal, holding that Owners were not required to give Charterers’ five banking days’ notice of the suspension.
The starting point was the recent decision of The Rainy Sky, which reiterated the principle that if a contract uses clear and unambiguous language, the court must apply it. Mrs Justice Gloster therefore looked closely at the express language of part  of clause 10(e). She found that there was nothing requiring the giving of notice or any grace period. The charterparty contained numerous clauses dealing with the giving of notices, but part  contained no such provision.
This could not be seen simply as an “oversight”. If the parties had intended there to be prior notification of Owners’ entitlement to exercise their right of suspension, they could and would have made express provision for it.
The judge drew a direct comparison with clause 11(a) of the NYPE 1993 form, which clearly links the right of suspension to the grace period contained in the anti-technicality notice.
This case again reiterates the point, made in The Rainy Sky, that the court will first and foremost consider the express working of a clause in interpreting that clause. An argument of commerciality will not necessarily suffice to displace this. Indeed, in this case Mrs Justice Gloster said that the language of the clause was unambiguous, and in those circumstances “it was not permissible in effect to re-write the Charterparty on so-called grounds of commerciality”.
These findings emphasis the fact that charterparty clauses must be tightly drafted. Parties must never assume that a clause will give them a right or impose an obligation: those rights and obligations must be expressed in terms.
The full judgment text, which contains detailed commentary on the inter-relationship between the different parts of clause 10(e), is available on Bailii.