27th June 2019

Classic Maritime Inc v Limbungan Makmur SDN BHD [2019] EWCA Civ 1102

Winter Scott’s successful appeal in the Classic Maritime Inc v Limbungan Makmur SDN BHD [2019] EWCA Civ 1102 has the effect of restoring the orthodox measure of damages for breach of contract.

The second issue of law raised and dealt with was whether, on its true construction the exception clause in the contract required the charterers to prove that, but for the event relied on as having caused their failure to perform, they could and would have performed the contract.

It was held that the exception clause in the contract did require such proof. The effect of this is that parties can of course draft an exclusion or force majeure clause so that it either does or does not require proof of but for causation but the parties need to make sure when drafting these clauses, the intention either way is explicitly made.