1 Shipbuilders’ Association of Japan.

2 Robinson v Harman (1848) 1 Exch 850.

3 Hadley v Baxendale (1854) 156 ER 145, (1854) 9 Exch 341.

4 Stocznia Gdynia SA v Gearbulk Holdings Ltd [2009] EWCA Civ 75.

5 Dunlop Pneumatic Tyre v New Garage and Motor Co [1915] AC 79.

6 See Mitsubishi Corporation v Eastwind Transport Ltd [2004] EWHC 2924 (Comm) at [29].

7 See Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 at 848, where Lord Diplock observed at that: ‘A basic principle of the common law of contract … is that parties to a contract are free to determine for themselves what primary obligations they will accept’. Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) [2003] UKHL 12, [2003] 3 WLR 711 at para 57 (Lord Bingham of Cornhill): ‘legal policy favours the furtherance of international trade. Commercial men must be given the utmost liberty of contracting’.

8 Cavendish Square Holding BV v Talal El Makdessi [2015] UKSC 67, [2015] 3 WLR 1373.

9 Note 8.

10 We explain carry over agreements in more detail in ch 17.

11 William Hare Ltd v Shepherd Construction Ltd [2010] EWCA Civ 283, particularly para 18 of the judgment on the contra proferentem rule: ‘The principle which the courts have always applied to clauses by which a party seeks to relieve itself from legal liability, i.e. that to do so they must use clear words, should, in my view, be the dominant principle. As Lord Bingham of Cornhill recently reiterated in Dairy Containers Ltd v Tasman Orient Line CV [2005] 1 WLR 215: The general rule should be applied that, if a party otherwise liable is to exclude or limit his liability … he must do so in clear words; unclear words do not suffice; any ambiguity or lack of clarity must be resolved against that party.’

12 Note 8.

13 White and Carter v McGregor [1961] UKHL 5.

14 Hyundai Heavy Industries Co Ltd v Papadopoulos [1980] 1 WLR 1129.

15 West Faulkner Associates v London Borough of Newham (1994) 71 BLR 1.

16 The term best endeavours has received a great amount of consideration by the English courts and the starting point is that the phrase ‘means what the words say; they do not mean second-best endeavours’ (Sheffield District Railway Co v Great Central Railway Co (1911) 27 TLR 451).

17 McAlpine Humberoak Ltd v McDermott International (1992) 58 BLR 61 (CA).

18 ibid.

19 [2012] EWHC 1773 (TCC).

20 [2000] All ER (D) 1104.

21 2011 SCLR 70.

22 (1996) 82 BLR 81.

23 (1997) 82 BLR 39.

24 The provisions of the contract are key. Any condition precedent clauses regarding notification of claims must be complied with and any contractual restrictions on global claims would impact on a party’s ability to make a global claim.

25 [1993] 2 Lloyd’s Rep 68.

26 The risk for an expert relying on such data is that it may have been accumulated over many years from projects of which the expert has no first-hand knowledge.

27 Mackay v Dick & Stevenson (1881) 6 App Cas 251.

28 Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 2 All ER 260, [1973] 1 WLR 60.

29 Hamblen J in Adyard Abu Dhabi v SD Marine Services [2011] EWHC 848 (Comm).

30 Swallowfalls Limited v Monaco Yachting and Technologies SAM and Anor [2015] EWHC 2013, [2014] 2 Lloyd’s Rep 50. In this shipbuilding case, the Court of Appeal referred to the buyer’s failure to agree the terms of a variation order as being a breach of an implied duty of cooperation. However, the facts being determined in that matter were quite different. The court appears to have assumed that the buyer’s failure would prevent the builder continuing with the work.

31 Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd [2007] EWHC 447 (TCC).

32 Adyard Abu Dhabi v SD Marine Services (n 29).

33 Balfour Beatty Building v Chestermount Properties Ltd (1993) 62 BLR 1 at 13.

34 Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board (n 28).

35 Mackay v Dick & Stevenson (n 27).

36 Swallowfalls Ltd v Monaco Yachting & Technologies SAM and Anor (n 30).

37 The Court of Appeal applied the principle as found in Mackay v Dick & Stevenson (n 27).

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