UK: Piracy Update: Conwartime, Piracy, And Owners' Obligations Revisited

Last Updated: 4 January 2012
Article by Lindsay East, William A. Howard and Richard M. Gunn

A recent decision of the Commercial Court in London (handed down on 8 November 2011) has clarified the limits of a shipowner's obligation under the Conwartime 1993 clauses to obey his charterer's orders to navigate waters rendered parlous because of the threat of piracy. Although the reasoning of Teare J in The Triton Lark1 differs from the analysis we have previously adopted, ultimately both constructions arrive at the same practical result.


The Conwartime 1993 clauses have been incorporated in the majority of time charters concluded in recent times. By the terms of Clause 1, "War Risks" are defined to include "acts of piracy ... which, in the reasonable judgement of the Master and/or the Owners, may be dangerous or are likely to be or to become dangerous to the Vessel, her cargo, crew or other persons on board the Vessel".

Clause 2 provides inter alia as follows:

"The Vessel, unless the written consent of the Owners be first obtained, shall not be ordered to or required to continue to or through, any ... area or zone ... where it appears that the Vessel ... in the reasonable judgement of the Master and/or the Owners, may be, or are likely to be, exposed to War Risks."

As we have previously advised, this clause is somewhat inelegantly drafted. In particular, it is not clear whether the phrase "may be, or are likely to be" is to be read conjunctively or disjunctively. In other words, there is ambiguity over whether it is necessary that, in the reasonable judgement of Owners, they may be and are likely to be exposed to War Risks, or whether it is sufficient that Owners reasonably consider that they may be or are likely to be exposed to such risks. This is despite the fact that the punctuation in the relevant phrase suggests otherwise.

The disjunctive analysis

Previously, we had advised clients that it was necessary that Owners reasonably consider that they may be or that they are likely to be exposed to War Risks (including piracy). This construction is supported by the syntax of the clause, and also by the clear intuition that the terms "may" and "likely" convey different meanings.

On this construction, it is plain that the requirement that Owners "may" be exposed to piracy was the operative condition, in that all events that are likely may occur, but not all events that may occur are likely. It was thus critical to determine the meaning of "may be". This phrase, we considered, would (i) exclude risks that are contingent and very remote, and (ii) would not encompass risks that are purely fanciful. It was not necessary that such a risk be greater than an even probability, despite our view that "likely to be" would entail a risk of more than 50 percent, since on the disjunctive analysis "may be", and not "likely to be", was the operative condition.

In the result, Owners would not be required to follow a charterer's order to navigate waters that Owners reasonably considered would expose them to a real, and not merely fanciful, risk of piracy.

The conjunctive analysis?

In The Triton Lark, however, Teare J concluded that the phrase "may be, or are likely to be" could not reasonably be construed as requiring that one of two different degrees of probability must be shown. The Judge considered that such a construction would be confusing to those seafaring men to whom the clause is addressed: these are not lawyers trained in semantic hair-splitting. As such, the phrase in question must be read conjunctively, as expressing one condition only; i.e. as 'maybe, that is, likely to be'.

On this construction, and analogously to the analysis above, it is clear that the condition in clause 2 is governed by the phrase "likely to be", since all events that are likely to occur will also be ones that may occur, but not vice versa. It was thus critical that the Judge determine the meaning of "likely to be", and this he did by reference to the House of Lords' decision in The Heron II.2

That case concerned the question of remoteness in damages, and particularly whether losses that were foreseeable at the time of contracting as a "not unlikely" result of a party's contractual breach were recoverable by the innocent party.3 In his judgment, Lord Reid specified that the words "not unlikely" should be considered to connote a degree of probability considerably less than an even chance, but would not embrace consequences that were very unusual.4

Importing this analysis, and impliedly accepting that "not unlikely" and "likely" are coterminous, Teare J concluded that the term "likely" for the purposes of Conwartime Clause 2 should be read as extending to risks that are not merely fanciful or speculative, without the requirement that they be more likely than not,5 with the result that the clause requires a real likelihood, in the sense of a real danger, that the Vessel will be exposed to acts of piracy.

The decision has been subjected to some criticism in academic circles, and may well be the subject of an appeal.


Although the two analyses above differ, it is nonetheless plain that their practical result is the same. In both cases, Owners need not follow a Charterers' instructions if to do so would expose them to a real, and not merely fanciful, risk of piracy. As previously mentioned, the Court held that the test is still an objective one, i.e. the risk to that vessel, at that time. This is a question of fact for the original Tribunal. The case was remitted to the Arbitration Tribunal for further findings, and we understand the case will shortly be heard again in the Commercial Court. We shall monitor any further decision.

It is to be hoped that the further decision will also clarify the issue of "exposure to risk of piracy' in sub-clause (2), which Teare J said means that "the vessel is subject to the risk of piracy or is laid open to the danger of piracy", the meaning of "risk" still being open to a number of interpretations, including "danger or peril" or "risk or chance".


1. Pacific Basin IHX Ltd. v Bulkhandling Handymax AS (The "Triton Lark") [2011] EWHC 2862 (Comm).

2. Czarnikow Ltd. v Koufos (The "Heron II") [1969] 1 AC 350.

3. Id., at 382-3.

4. Id., at 383.

5. The Triton Lark, at [40].

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions