Judgment handed down in Olam International Limited v Pacific Basin Supramax Limited [2026] EWHC 2136 (Comm) (the “Grande Island”)

Judgment has been handed down in Olam International Limited v Pacific Basin Supramax Limited [2026] EWHC 2136 (Comm). Alexander Wright KC, instructed by Calum Cheyne, Lucy Noble and Andriy Shalennyy of Floyd Zadkovich LLP, acted for the successful Defendant.

HHJ Hodge KC (sitting as a Judge of the High Court) dismissed the Claimant charterer’s appeal under s.69 of the Arbitration Act 1996 and upheld an award that the vessel remained on hire when it left a Nigerian discharge port due to a risk of piracy.  Unusually, the award was upheld notwithstanding that permission to appeal had been granted on paper on the basis that the award was “obviously wrong”.

Background and issues

The dispute arose out of a time charterparty on an amended NYPE form for the carriage of bulk wheat from Ghent to Nigeria (the “Charterparty”). The vessel had arrived at Warri but could not berth. The master, apprehending a risk of piracy in the Gulf of Guinea, sailed back to Lagos, returning to Warri some three days later.

The dispute between the parties centred primarily on whether the Charterparty entitled the owner to refuse to remain in the area due to piracy risk, or whether the refusal to remain constituted a deviation that rendered the vessel off hire.

The pro forma charterparty incorporated the BIMCO Piracy Clause for Time Charter Parties 2013 (the “BIMCO Piracy Clause”) as clause 81.

In brief, sub-clause (a) granted the shipowner the liberty to leave an area of piracy risk if that area “in the reasonable judgment of the Master and/or the Owners, is dangerous to the Vessel, cargo, crew or other persons on board”. Sub-clause (b) dealt with the obligations on the charterer in the case of an exercise of sub-clause (a).

Sub-clause (c)(i) provided that, if the vessel proceeded through an area exposed to a piracy risk, then the shipowners have the liberty to “take reasonable preventative measures to protect the Vessel, crew and cargo including but not limited to re-routeing within the Area, proceeding in convoy, using escorts, avoiding day or night navigation, adjusting speed or course, or engaging security personnel and/or deploying equipment on or about the Vessel (including embarkation/disembarkation).”

However, the Charterparty recap included the instruction to “delete a + b”, referring to sub-clauses (a) and (b). The remainder of the BIMCO Piracy Clause was incorporated without amendments, including the liberty in clause 81(c)(i) entitling the shipowner to take “reasonable preventative measures”.   The recap also contained a bespoke clause allowing the vessel to anchor some distance off Port Harcourt or Calabar in case of congestion.

A Tribunal of three experienced maritime arbitrators held unanimously that (i) Warri was within an area exposed to the risk of piracy, (ii) departing and temporarily returning to Lagos was a “reasonable preventative measure” within the “broad” wording of clause 81(c)(i), and (iii) the vessel accordingly remained on hire (set out at [14]).

HHJ Pelling KC granted permission to appeal on the basis that the Tribunal’s construction was “obviously wrong”, principally because it did not grapple with how the mutual intention implicit in the deletion of clause 81(a) was consistent with the conclusion that there was an entitlement to leave Warri by operation of clause 81(c)(i) (set out at [18]).

The parties’ submissions

The charterer contended that clause 81, with the express deletion of sub-clauses (a) and (b), did not permit the shipowner to leave Warri and remain on hire. It was further submitted that the express deletion of sub-clauses (a) and (b) was admissible, and that the objective intention of the parties in deleting (a) was to remove the right to leave. It was therefore impossible to construe the right in 81(c)(i) to “take reasonable preventative measures to protect the Vessel, crew and cargo” as conferring a generalised right to leave the area (set out at [24]-[27]).

It was further submitted on behalf of the charterer that, in any event, the principle of ejusdem generis applied. That is to say, the charterer submitted that the list of examples of preventative measures in 81(c)(i), all of which were measures that could be taken only within the area exposed to the risk of piracy (or when proceeding to such an area), limited the shipowner’s rights such that clause 81(c)(i) did not entitle the shipowner to leave Warri altogether (set out at [30]-[31]).

On behalf of the shipowner, Mr Wright KC submitted that clause 81, when construed alongside the remainder of the Charterparty, contained a series of overlapping rights exercisable on different triggers, such that the deletion of clauses 81(a) and (b) did not bear on the proper construction of the different suite of rights in clause 81(c)(i) (at [45]). Sub-clause (a) turned on the owner’s “reasonable judgement”, whereas 81(c) required proof of an actual risk of piracy. Moreover, the rights under (a) and (b) were absolute, whereas measures under (c) had to be objectively reasonable (at [52]-[57]). The better inference was therefore that the parties, in deleting sub-clauses (a) and (b), simply intended to remove the shipowner’s absolute rights.

The shipowner also submitted that, although the meaning of clause 81(c)(i) was clear, the reason behind the deletion of sub-clauses 81(a) and (b) was ambiguous, meaning the only option available to the Court would be to speculate on the intention behind the removal. This was not permissible.  

Mr Wright KC advanced seven reasons why leaving Warri could, on the facts, be a “reasonable preventative measure”, including: the ordinary and natural meaning of the words; the broad drafting of clause 81(c)(i), particularly the non-exhaustive “including but not limited to” formulation; the commercial purpose of the clause; and the commercial oddity of a regime in which a deviation within an undefined (and possibly very large) area would keep the vessel on hire, while crossing just outside of it would not (at [62]-69]).

Moreover, the shipowner submitted that the ejusdem generis principle was not engaged, and although it could assist in construction, it would not be determinative. In any event, in the context of clause 81(c)(i) the “common genus” of the enumerated steps was “to avoid, or to mitigate, the risk of piracy”. As such, Mr Wright KC submitted that, if the ejusdem generis principle was engaged, the genus of the enumerated steps was wide enough to include temporary departures from Warri. On the charterer’s construction, the genus of the enumerated steps was, in substance, a facility to do anything except leave the area (at [70]).

The proper approach to construction of deletions

The Court restated the principles governing recourse to deleted words as an aid to construction, derived from Mopani Copper Mines plc v Millenium Underwriting Ltd [2008] EWHC 1331 (Comm) (approved by the Court of Appeal in Narandas-Girdhar v Bradstock[2016] EWCA Civ 88). From those authorities, the Court derived the following propositions (at [23]):

1. In general, reliance upon deleted words is impermissible as an aid to construction.

2. The Court should first construe the retained words without reference to any deletion. If these are unambiguous, reference to the deletion is impermissible.

3. If the words are ambiguous, the deleted words are admissible to ascertain whether they cast any objective light on the meaning of the retained words. This is possible in two situations.

1. First, where the deleted words assist in resolving ambiguity in the remaining words.

b. Secondly, where the fact of deletion shows what the parties agreed they did not agree about.

4. Even if the deleted words can be admitted, care must be taken as to the inferences that can be drawn from them. The parties might have deleted words for a range of reasons.

5. Attention should be paid to the difference between the situation where a self-contained provision is simply deleted, and the situation where a draft is amended and effectively re-cast.

6. These principles apply particularly in relation to printed forms or clauses derived from such forms, but they may also apply where no printed form is involved.

Analysis and conclusions

The Court dismissed the appeal by two alternative routes:

• First, recourse to the deleted sub-clauses was impermissible. Construed properly, clause 81(c)(i) admitted of no ambiguity: as a matter of ordinary and natural language there is no reason why leaving an area cannot be a “reasonable preventative measure”, and the enumerated examples within clause 81(c)(i) (introduced by “included but not limited to”) were expressly non-exhaustive. Reference to the deletion was therefore unnecessary, and it was illegitimate to speculate as to the parties’ reasons for it (at [105]-[106]; [109]).

• The Court further noted that the retained clause 79(b) contemplated the vessel leaving an area which may be exposed to piracy risks, and that the charterer’s submission that the rights conferred by 81(a) and 81(c) were identical was self-defeating: if the packages of rights were identical, clause 81(c) must contemplate departure; if they were not identical, that supported the shipowner’s case that the sub-clauses conferred different suites of rights (at [107]). Commercial considerations and other sub-clauses pointed the same way. Given that clauses 81(e) and (f) kept the vessel on hire following a pirate attack or seizure, the charterer itself had a substantial financial interest in a broad rather than restrictive reading of the preventative measures available to the master (at [108]).

• Second, even if the deletions were admissible, the deletions should not lead the Court to conclude that the range of reasonable preventative measures was limited to measures to be taken within the area of risk (at [110]). Sub-clauses (a) and (b) conferred certain rights on the shipowner and (if these were exercised) consequent obligations on the charterer. These were rights independent of, additional to, and more extensive than those under sub-clause (c) (at [110]-[111]). As a result, the deletion of sub-clauses (a) and (b) was not consistent only with an intention that the shipowner could not leave the affected area by way of reasonable preventative measures under sub-clause 81(c)(i) (at [111]).

The Court rejected the charterer’s reliance on the ejusdem generis principle (at [112]), agreeing with the shipowner’s submission that the principle was not engaged, because there was no relevant genus that could operate to exclude temporary departures from Warri. 

The Court also observed that the question of whether an award is “obviously wrong” falls to be reconsidered at the substantive hearing, and with the benefit of full oral argument. The permission Judge did not have the benefit of such, and the Court therefore disagreed with HHJ Pelling KC’s permission-stage assessment. The Tribunal was under no obligation to spell out well-established principles of construction, and the deletion achieved something real on the Tribunal’s construction, namely the removal of the absolute rights in sub-clauses (a) and (b) (at [114]-[121]).

Comment

The case is a useful modern restatement of the principles governing deletions as an aid to construction, and a reminder of the ambiguity gateway in Mopani. However deliberate a deletion may appear, it cannot be deployed to qualify retained wording that is unambiguous on a conventional construction. Care should be taken when deleting clauses. If the reason for the deletion is ambiguous, the Court will not speculate, and as such if parties want an excision to have consequences for the rest of the contract, they would be prudent to say so expressly. The Court’s list of propositions at [23] will no doubt be an important resource for practitioners seeking to navigate this complex area of contractual construction.

Moreover, the judgment of HHJ Hodge KC is a helpful illustration of the approach to contractual construction in England and Wales, particularly in the context of charterparties. Although a series of sub-clauses might purport, on initial inspection, to deal with the same rights, a finer textual and commercial analysis will sometimes reveal that the suites of rights conferred are, in fact, distinct. This can have important ramifications for parties seeking to rely on those rights.

Finally, the case serves as a vital restatement of the principles applicable to s.69 appeals, particularly at the permission stage. The Court’s comments on what constitutes an appealable error of construction will no doubt be of use to arbitration practitioners, as will HHJ Hodge KC’s views on the role of permission-stage determinations. Respondents may well take some comfort from the Court’s observations that, even where permission to appeal is granted on the basis that the Tribunal’s decision is “obviously wrong”, the correctness of a Tribunal’s award is ultimately a matter exclusively for the s.69 appeal Judge, who may well reach a different view after full oral argument.

The full judgment can be accessed here.