NKD MARITIME LIMITED v BART MARITIME (No 2) INC

NKD MARITIME LIMITED v BART MARITIME (No 2) INC

NKD was not entitled to terminate the MOA under the force majeure clause because the seller was not ‘unable’ to transfer title within the meaning of the contract. The vessel’s arrival at the nearest accessible location constituted full performance under the MOA, and the delays caused by government restrictions did not amount to an inability to perform that would frustrate the commercial purpose of the contract. NKD’s purported termination was itself a repudiation, entitling Bart to retain the deposit.

Parties
Claimant: NKD Maritime Limited; Defendant: Bart Maritime (No. 2) Inc
Jurisdiction
England and Wales
Judgment Date
24 June 2022
Procedural Posture
Commercial Contract Dispute / High Court Trial Judgment
Outcome
Claim dismissed; counterclaim allowed in part
Legal Topics
Force Majeure, Sale of Goods, Ship Recycling, Contract Termination, Damages
Contract Law Maritime Law Force Majeure Sale of Goods Ship Recycling Contract Termination Damages

Case Brief

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Parties

NKD Maritime Limited

Claimant

Bart Maritime (No. 2) Inc

Defendant

Procedural Posture

Commercial Contract Dispute / High Court Trial Judgment

Legal Issues

  1. 1 Whether the termination of the Memorandum of Agreement (MOA) for the sale of a vessel was valid under the force majeure clause due to Covid-19 restrictions in India
  2. 2 Whether the seller was unable to transfer title in accordance with the contract due to government restraint
  3. 3 Whether the buyer was entitled to the return of the deposit under the MOA

Ratio Decidendi

NKD was not entitled to terminate the MOA under the force majeure clause because the seller was not ‘unable’ to transfer title within the meaning of the contract. The vessel’s arrival at the nearest accessible location constituted full performance under the MOA, and the delays caused by government restrictions did not amount to an inability to perform that would frustrate the commercial purpose of the contract. NKD’s purported termination was itself a repudiation, entitling Bart to retain the deposit.

Court Disposition

Claim dismissed; counterclaim allowed in part

Orders

  • NKD’s claim is dismissed
  • Bart is entitled to retain the Initial Payment (deposit) of US$4,264,723.13