The Court of Appeal in Classic Maritime Inc. v Limbungan Makmur SDN BHD and Another [2019] EWCA Civ 1102 contrasted the circumstances in which an exceptions clause and a contract frustration clause would operate.
The appeal concerned the charterer’s failure to ship five cargos of iron ore from Brazil to Malaysia in the period following the Fundao dam disaster, which had the effect of preventing iron ore cargos from being shipped from Ponta Ubu but not from Tubarao. The court of first instance had found that the charterer did not intend to ship cargo due to a collapse of demand in Malaysia but, had it wanted to, it would have been unable to source alternative cargo from Tubarao.
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