Neutral Citation Number:  EWHC 1615 (Comm)
Case No: CL-2020-000216
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF
ENGLAND AND WALES
COMMERCIAL COURT (QBD)
THE HON MR JUSTICE BUTCHER
NKD MARITIME LIMITED
BART MARITIME (No. 2) INC
NKD Maritime Limited v Bart Maritime (No. 2) Inc. (Butcher J) Summary
Contractual interpretation – Force majeure and ‘inability’ – Transfer of title and delivery – restraint of governments – COVID-19 response in India – Interest
This in-person trial took place in May 2022, and concerned the termination of an agreement (the “Agreement“) for sale of vessel (the “Vessel“) for demolition in India in 2020.
The Court found that, for this Agreement, ‘transfer of title’ did not import the notion of delivery. If the Court was mistaken on this point, it also determined that although the Vessel had not reached the specified delivery location, its anchorage position prior to termination was a substituted delivery location. As such, in accordance with the Agreement, the Seller had performed its contractual obligations.
The Court determined that the Indian government’s response to the unfolding pandemic, in particular the impact on various maritime port authorities, had resulted in a ‘restraint of governments’. However, the Court found that this temporary restraint had not resulted in an ‘inability’ to transfer title. As such, the termination of the Agreement was a repudiatory breach, permitting the Seller to retain the deposit paid. Given that the amount of the deposit exceeded the amount of the Seller’s losses, the Court found that the Seller was not entitled to contractual interest.
The full judgment  EWHC 1615 (Comm), is available to download below.