This case document summarizes the facts and decision in Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26, Court of Appeal. Kawasaki appealed. To export a reference to this article please select a referencing stye below: Our academic writing and marking services can help you! Hong Kong responded that Kawasaki were now the party in breach for wrongfully repudiating the contract. If it is not a condition precedent, what matters it whether it is unperformed with or without excuse? No doubt there are many simple contractual undertakings, sometimes express but more often because of their very simplicity ("It goes without saying") to be implied, of which it can be predicated that every breach of such an undertaking must give rise to an event which will deprive the party not in default of substantially the whole benefit which it was intended that he should obtain from the contract. This chapter discusses the decision of the Court of Appeal in The Hongkong Fir, one of the most important English contract cases of the 20th century. has exercised the English Courts for centuries, probably ever since assumpsit emerged as a form of action distinct from covenant and debt and long before even the earliest cases which we have been invited to examine; but until the rigour of the rule in Paradine v Jane[5] was mitigated in the middle of the last century by the classic judgments of Mr Justice Blackburn in Taylor v Caldwell [6] and Baron Bramwell in Jackson v Union Marine Insurance [7] it was, in general, only events resulting from one party's failure to perform his contractual obligations that were regarded as capable of relieving the other party from continuing to perform what he had undertaken. Other phrases expressing the same idea were used by other judges in the cases which have already been cited by Lord Justice Sellers, and I would only add to his comments upon them that when it is borne in mind that until the latter half of the nineteenth century the only event that could be relied upon to excuse performance by one party of his undertakings was a default by the other party no importance can be attached to the fact that in occasional cases, and there may be others besides Freeman v. Taylor (1831) 8 Bingham page 124 , the Court has referred to the object or purpose of the party not in default rather than to the object or purpose of the contract, for the relevant object or purpose of the party not in default is that upon which there has been a consensus ad idem of both parties as expressed in the words which they have used in their contract construed in the light of the surrounding circumstances. Secondly, the Court held that an innocent party cannot treat the contract as repudiated due to delays, however significant, if the breach falls short of a frustration of the contract rendering performance impossible. The cases referred to by Lord Justice Sellers illustrate this and I would only add that in the dictum which he cites from Kish v. Taylor (1912 Appeal Cases page 604, at page 617) it seems to me from the sentence which immediately follows it as from the actual decision in the case and the whole tenor of Lord Atkinson's speech itself that the word "will" was intended to be "may". This branch of the common law has reached its present stage by the normal process of historical growth, and the fallacy in Mr. Ashton Roskill's contention that a different test is applicable when the event occurs as a result of the default of one party from that applicable in cases of frustration where the event occurs as a result of the default of neither party lies, in my view, from a failure to view the cases in their historical context. Clause 1 of the contract obliged the owners to deliver a “seaworthy” vessel and Clause 3 further obliged them to maintain the vessel’s seaworthiness and good condition. It is, with all deference to Mr. Ashton Roskill's skilful argument, by no means surprising that among the many hundreds of previous cases about the shipowner's undertaking to deliver a seaworthy ship there is none where it was found profitable to discuss in the judgments the question whether that undertaking is a "condition" or a "warranty"; for the true answer, as I have already indicated, is that it is neither, but one of that large class of contractual undertakings one breach of which may have the same effect as that ascribed to a breach of "condition" under the Sale of Goods Act and a different breach of which may have only the same effect as that ascribed to a breach of "warranty" under that Act. Registered Data Controller No: Z1821391. The problems in what event will a party to a contract be relieved of his undertaking to do that which he has agreed to do but has not yet done? A term in the charterparty agreement required the ship to be seaworthy and to be "in every way fitted for ordinary cargo service." White and Carter (Councils) Ltd v McGregor, "a 25-year-old vessel called the "Antrim", which they renamed the "Hong Kong Fir", of some 5395 tons gross and 3145 tons net register", Law Reform (Frustrated Contracts) Act 1943, Universal Cargo Carriers Corporation v Citati, Maredelanto Compania Naviera SA v Bergbau-Handel GmbH, L Schuler AG v Wickman Machine Tool Sales Ltd, Golden Strait Corporation v Nippon Yusen Kubishka Kaisha, https://en.wikipedia.org/w/index.php?title=Hong_Kong_Fir_Shipping_Co_Ltd_v_Kawasaki_Kisen_Kaisha_Ltd&oldid=983505504, Court of Appeal (England and Wales) cases, Creative Commons Attribution-ShareAlike License, [1962] 2 QB 26, [1961] EWCA Civ 7, [1962] 1 All ER 474, This page was last edited on 14 October 2020, at 16:34. Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA Civ 7 is a landmark English contract law case. Once it is appreciated that it is the event and not the fact that the event is a result of a breach of contract which relieves the party not in default of further performance of his obligations two consequences follow. It introduced the concept of innominate terms, a category between "warranties" and "conditions". [13] It was not, however, until Jackson v. Union Marine Insurance (1874) 10 Common Pleas page 125, that it was recognised that it was the happening of the event and not the fact that the event was the result of a breach by one party of his contractual obligations that relieved the other party from further performance of his obligations. Ravi engaged MIcrohard Company Pte Ltd to perform professional software support service for his customers relationship management software, We will assess whether MicroHard Company Pte Ltd has satisfy the terms of agreement, if not, we will do discussion about the question whether Ravi can get any compensation in incidents (a), (b) an… The enormous costs involved in chartering mean that parties cannot afford to leisurely loiter, whilst pondering the consequences of the breach. Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd (1962) Kawasaki chartered the Hong Kong Fir from Hong Kong Fir Shipping Co for 24 months. In chartering mean that parties can not afford to leisurely loiter, whilst pondering the consequences of the ship seaworthy... Named is the precise note for contract law course Baltime 1939 charter of. Must be determined by the judges the engine crew were incompetent decision was met with some in... What matters it whether it is not a condition precedent, what it! 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