[2025] EWHC 2036 (Comm)

Contractual terms that permit a party to withhold contractual performance are to be construed narrowly, and ambiguity is to be resolved against a party seeking to rely on them: The Crudesky [2013] EWCA Civ 905; [2014] 1 Lloyd’s Rep 1, per Longmore LJ at [25]; RTI v. MUR [2024] UKSC 18; [2024] 2 WLR 1350, at [44]-[46], per Lords Hamblen and Burrows JJSC. Both these cases concerned force majeure clauses, permitting non-performance in certain cases. It is not disputed that the Claimant is the proferens with respect to the EPS Sanctions Clause.

In his first decision in The Triton Lark, Teare J did not fully grapple with the concept of disclosure. It was only after his first decision that the parties invited the judge to decide the meaning of “exposed to War Risks”. In his second judgment, Teare J revisited the comments in [38] of his earlier judgment and at [10] concluded that the question upon which the owner had to reach a reasonable judgment turned on the references to a “dangerous” place elsewhere in the relevant clause. At [11] the judge stated that the question was therefore whether there was a real likelihood that the ship would be “exposed to acts of piracy in the sense that the place will be dangerous on account of acts of piracy”. Things therefore had moved on from the test set out at [38] of the first judgment.

At [37] of the first decision of The Triton Lark, Teare J said that the right of a charterer to direct the chartered ship was a “key right” and that any limitation on that right had to be “clearly expressed”. Clauses such as this are not exclusion clauses in the sense that they directly exclude liability for breach, but they are secondary clauses that permit departure from clear and important primary rights established elsewhere in the contract: see Exclusion Clauses and Unfair Contract Terms, 13th Ed, §§1-015-1-016, and The Angelia [1973] 1 WLR 210, at p. 230H per Kerr J (as he then was).