226 QUEEN’S BENCH DIVISION. [1964] foecker OCEAN TRAMP TANKERS CORPORATION v. ca V/O SOVFRACHT. Oct. 25, 28, 29, 30 THE EUGENIA. Noo. 21 Hel Pewsins shipping—Charterparty—Time or voyage charter—“ Time” charter uy for single voyage—War clause—Suez incident—Ship ordered into LJ. ‘canal—Whether breach by charterers—Whether voyage frustrated. Contract—Frustration—Charterparty—Time charter for one voyage— Voyage from Black Sea to India—Ship trapped in Suez Canal— Whether fundamentally different situation resulted from blocking of the canal. Ships’ Names—Eugenia. By a time charterparty of September 9, 1956, the Eugenia was let to the charterers for a ‘trip out to India via Black Sea” from the time the vessel was delivered to the charterers at Genoa. The charterparty by clause 21, a customary war clause, provided: “The vessel, unless the consent of the owners be first obtained, “‘not to be ordered nor continue to any place or on any voyage “‘nor bo used on any service which will bring her within a zone “‘which is dangerous as the result of any actual or threatened “act of war, war hostilities, warlike operations, . When the charterparty was negotiated the agents of both parties realised that the Suez Canal might be closed but no express terms were inserted in the charter to meet that eventuality. The vessel was delivered on September 20 at Genoa, On October 25, 1956, she sailed from Odessa, the customary route at this time to India being still by the Suez Canal. She arrived at Port Said on October 30, when Egyptian anti-aircraft guns were in action. Port Said and the Suez Canal were then zones which were “ dangerous "” within clause 21. The vessel entered the canal on October 31 and proceeded south. The canal was blocked by the Egyptian Govern- ment, and the vessel was trapped. A passage was cleared north- ward in January, 1957, and on January 12, 1957, the vessel arrived at Alexandria, On January 4 the charterers claimed that the charterparty had been frustrated by the blocking of the canal. The owners denied frustration. They treated the charterers’ conduct as repudiation and claimed damages : — Held, (1) that this was a time charter the essence of which was that the ship owners placed the vessel at the disposal of the charterers, The vessel was under the charterers’ orders when she approached the Suez Canal and the charterers were in breach of the war clause when they, ordered her to enter the canal (post, Pp. 236, 242). (2) That the blocking of the Suez Canal did not bring about so fundamentally different « situation as to frustrate the venture (post, pp. 241, 243). Observations of Lord Radcliffe in Davis Contractors Ltd. v.2 QB. QUEEN’S BENCH DIVISION. Fareham Urban District Council [1956] A-C. 696, 720; [1956] 3 W.LR. 37; [1956] 2 All E.R. 145, HL. applied. Société Franco Tunisienne D'Armement v. Sidermar S.P.A. (The Massalia) [1961] 2 Q.B. 278; [1960] 3 W.L.R. 701; (1960] 2 All E.R. 529 overruled. Decision of Megaw J. reversed. Apprat from Megaw J. The claimants, Ocean Tramp Tankers Corporation, were the owners of the vessel Hugenia, which by a charterparty dated September 8, 1956, they chartered to the respondents V/O Sovfracht. The owners agreed to let the vessel to the charterers for one voyage out to India via the Black Sea from the time the vessel was delivered and placed at the disposal of the charterers at Genoa. Before the terms of the charter were fixed, the question whether provision should be made for the event of the Suez Canal being blocked was raised but no terms were agreed and clause 21 of the charterparty (being the usual war clause) was inserted. It provided: ‘ (A) The vessel unless the consent of “the owners be first obtained not to be ordered nor continue to “any place or on any voyage nor be used on any service which “will bring her within a zone which is dangerous as the result of “any actual or threatened act of war, war hostilities, warlike “‘ operations, acts of piracy or of hostility or malicious damage “* against this or any other vessel or its cargo by'any person, body “or State whatsoever, revolution, civil war, civil commotion or “‘ the operation of international law, nor be exposed in any way “‘to any risks or penalties whatsoever consequent upon the “imposition of sanctions, nor carry any goods that may in any “way expose her to any risks of seizure, capture, penalties or “‘ any other interference of any kind whatsoever by the belligerent “or fighting powers or power or parties or by any Government or “ Ruler.” The vessel was duly delivered on September 20, 1956, to the charterers who sub-chartered her to two other Russian State Trading Corporations. The vessel proceeded to the Black Sea where a cargo consisting principally of metal goods was loaded. On October 25 she sailed from Odessa, arriving at Port Said on October 30. The Egyptian anti-aircraft guns were then firing and the zone was “dangerous” within the war clause. The vessel entered the canal on October 31 and proceeded south. That evening the Egyptian Government blocked the canal by sinking ships. The vessel was trapped. Early in January the way north was cleared. However, on January 4 the chartorers CA. 1968 ‘Tae Evaenta228 CA. 1963 ‘Tae Evoesta. QUEEN’S BENCH DIVISION. (1964) claimed that the charterparty had been frustrated. The owners denied frustration and treated the charterers’ conduct as repudiation. The vessel arrived at Alexandria on January 12, and on January 15 the owners entered into a new charter with the original sub-charterers. The owners claimed damages. The facts are more fully stated in the judgment of Lord Denning M.R. The arbitrator, T. G. Roche Q.C., held that the charterers were in breach of the war clause but that there was no frustra- tion of the charterparty. Megaw J. affirmed his decision with regard to the breach of the war clause but held that there was frustration of the charterparty. ‘The owners appealed on the ground, inter alia, that the judge was wrong in law in holding that for the vessel to go to India via the Cape of Good Hope on October 80, 1958, would have con- stituted @ fundamentally different adventure from that provided for by the charterparty and that the judge was wrong in following Société Franco Tunisicnne D'Armemont v. Sidermar 8.P.A. (The Massalia),1 and that that decision was wrong and should be overruled. Ashton Roskill Q.C. and J. G. Wilmers for the owners. Two questions arise: (1) Was there frustration by reason of the closure of the Suez Canal? (2) what is the true construction of clause 21, the war clause, in this charterparty, which was in the Baltimore form of 1989? There was here no frustration. This is not a case of requisition. If there was not frustration no term can be implied in respect of the blocking of the canal because the parties foresaw that possibility and failed to reach any agreement in respect of it. [Reference was made to Taylor v. Caldwell.?] Frustration depends not on adding an implied term but on the true construction of the terms which are in the contract read in the light of the relevant surrounding circumstances: see the speeches of Lord Reid, Lord Radcliffe and Lord Somervell in Davies Contractors Ltd. v. Fareham Urban District Council.? The obligation of the charterers was to take that route to India which was customary at the time of the performance of the contract. If the customary route is changed during the voyage that does not bring the doctrine of frustration into operation 4 [1961] 2 Q.B. 278; [1960] 8 $ [1956] A.C. 696; [1956] 3 W.L.R. 701; [1960] 2 All E.R. 529. WLR. 37; [1956] 2 AN E.R. 145, 2 (1868) 8B. & 8. 826, H.L.(.).2 QB. QUEEN’S BENCH: DIVISION. [Reference was made to Chitty on Contracts, 22nd ed., Vol. 1, para. 1176; Tsakiroglou & Co. Ltd. v. Noblee Thorl G.m.b.H.4; Carapanoyoti & Co. Ltd. v. E. T. Green Ltd.) The position might have been different if the cargo had been a perishable cargo: for instance, tomatoes. In: the case of such a cargo it might be impossible to deliver the goods and it might be neces- sary to land and sell them. [Reference was made to Larrinagu & Co. Ltd. v. Société Franco-Americaine des Phosphates de Medulla, Paris.*] In considering whether there was here frustration it is neces- sary to compare not only the greater distance of the voyage but also the greater length of time during which the ship would have been at the service of the charterers. In this case a voyage to India via the canal would ordinarily have taken 108 days and by the Cape route 188 days. The cargo, owing to its nature, would not have been affected by the greater length of the voyage. If it is held that the contract was frustrated, it is not desired to pursue any claim to indemnity under the charterparty. If the contract was frustrated the liability under the contract goes. In view of the terms of the charterparty under consideration the decision of Pearson J. in the Massalia’ is distinguishable. But to distinguish it on a narrow ground is undesirable and it is submitted that the decision is wrong in principle and should be overruled. The decision in the Tsakiroglou case * establishes that'a c.i-f. contract for delivery to India would probably not be frustrated by the closure of the Suez Canal. Frustration is a question of law. Michacl Kerr Q.C. and M. J. Mustill for the charterers. This was a peculiar type of charterparty not envisaged by the printed form which was employed. The normal time charterparty is for a period measured in time. It is sometimes limited geographically to narrow limits. This charterparty was adapted and made into a different contract. Here the ‘‘ paramount feature’ was a voyage to India. This was not a time charter and it should not be so construed. [Reference was made to Scrutton on Charter- party, 16th ed., p. 295; Lloyd Royal Belge Société Anonyme v. 4 [1962] A.C. 93; [1961] 2 © (1922) 29 Com.Cas, 1; 89 T.L.R. W.L.R, 633; [1961] 2 All E.R. 179, 816, H.L. HL. 1 [1961] 2 Q.B. 278, 5 [1950] 1 Q.B. 181; [1958] 3 [1963] A.C. 93. W.L.R. 390; [1958] 3 All E.R. 115. 229 CAL 1963 Tae ‘Evcenta.280 1963 ‘Tae Evazwia. QUEEN’S: BENCH DIVISION, [1964] Stathatos®; Temple Steamship Co. Ltd. v. V/O Sovfracht."*] In proceeding via the Suez Canal the charterers were not in breach of the war clause in the charterparty. The obligation on both parties was to proceed by the direct route to India and the charterers had no right to deviate: see the observations of Lord Herschell L.C. and Lord Halsbury in Glynn v. Margetson & Co.” It follows: (1) that the owners were bound to allow the vessel to proceed by the customary route from the Black Sea to India, which was the direct route via the canal; (2) that if, while the canal was open, the charterers had taken cargo via the Cape that would have been a deviation; (3) that the charterers, while the canal was open, were not entitled to order the vessel to go by the Cape; (4) that the vessel was not under the charterers’ orders or control so far as concerned her route, which was prescribed by-the charterparty. She was under the charterers’ orders in three respects only: (i) they had a complete choice of loading ports in the Black Sea; (ii) of discharging ports in India and (iii) possibly they might be entitled to decide at which ports on the contractual route the vessel should bunker. When the vessel left the Black Sea she had to go via the canal to India. The charterers had no option about that. When the canal was blocked either the contract was then frustrated or the vessel should have taken what then became the route to India. However, if that route were fundamentally different there was frustration. ‘The contractual route here was by the Suez Canal. The charterers did not order the vessel to enter the canal, she entered not in breach of contract but because she was performing the contract. The war clause did not apply because the vessel was carrying out the contract voyage. It only applied if the charterers had ordered the vessel to a port which was dangerous and one outside the contractual route. This charterparty was frustrated because: (1) the vessel was immobilised for an indefinite time; (a) supervening events caused such delay and prolongation of the adventure as to make it a different'adventure from that which the parties had contemplated. This contract was frustrated on November 16, 1956, when it became ‘known that the blockage of the canal would last until March or April, 1957. Even if the charterers were in breach of the contract that would not prevent other events causing frustra- tion, Pearson J.’s decision in Soviété Franco Tunisienne ® (1917) 83 TLR, 990; 94 T.L.R. 14 [1693] A.C. 851, 854, 957; 9 70, C.A. TLR. 487, HL. 10 (1945) 79 LLL.R, 1, H.L.2 QB. D’Armement v. Sidermar S.P.A. (the Massalia)* accords with the views of the commercial community. That case was rightly decided and the present case cannot be distinguished from. it. The test as to frustration laid down by Asquith L.J. in Sir Lind- say Parkinson & Co. Ltd. v. Works and Public Buildings Commissioners '° and referred to in Davies Contractors Ltd. v. Fareham Urban District Council ** is accepted. The blocking of the canal brought about a fundamentally different journey. The decision in Bank Line Ltd. v. Arthur Capel & Co. shows that length of time may of itself cause frustration. [Reference was made to Court Line Ltd. v. Dant and Russell Incorporated ** and to Fibrosa Spolka Akcyjna v. Fairbairn’ Lawson Combe Barbour.17] In the Tsakiroglou case ** the House of Lords emphasised the importance of the views of commercial men in construing com- mercial contracts. In that case the House of Lords was con- cerned with a contract of affreightment and it was held that a change of route did not produce frustration. There is nothing in that case to suggest that thé non-availability of the contract route may not cause frustration in the case of a charterparty. On the contrary the Massalia’ was referred to without dis- approval to illustrate the difference in the position existing under ® contract of affreightment. [Reference was made to Embericos v. Sydney Reid & Co.?°; Scottish Navigation Co. Ltd. v. W. A. Souter & Co.**; Federal Steam Navigation Co. Ltd. v. Sir Raylton Dizon & Co. Ltd.?*] Whether a contract is frustrated or not is a question of mixed fact and law: The Tsakiroglow.2* Ashton Roskill Q.C. in reply. A time charterparty has for many years been either a charterparty literally for a time or for a voyage on a time basis. This charterparty is a time charterparty. [Reference was made to Limerick Steamship Co. Ltd. v. W. H. Stott & Co. Lid.**] The voyage is used as the measure of time but it does not turn a time charterparty into a voyage charter- party. [Reference was made to Carver, Carriage by Sea, 11th QUEEN’S BENCH DIVISION. 22 [1961] 2 Q.B. 978. 43 [1949] 2 K.B. 632; [1950] 1 All E.R. 208, CAL 34 [1956] A.C. 696. 45 [1919] A.C. 435; 95 T.L.R. 150, L, HL 36 [1939] 3 All E.R, 314; 44 Com. Cas. 845. 17 (1943) a 32; E.R, 12, HD. [1942] 2 all 18 [1962] A.C. 93, 19 [1961] 2 Q.B. 278. 20 [1914] 8° K.B. 45; 30 T.L.R. 451. 21 [1917] 1 K.B, 922; 33 TLR. 10, CA. 22 (1919) LLL.R. 68, HL. 29 [[1962] A.C. 93. 24 [1991] 2 K.B, 618; 88 TLR. 674, OA. 231 CAL 1963 ‘Tae Evonnia.232 GAL 1963 ‘Tae Evoenta. QUEEN’S BENCH DIVISION. [1964] ed., para. 368.] Because there is a voyage element in this charterparty it does not mean that the vessel was not under the orders of the charterers. The master was bound to follow the orders of the charterers as to the route to be followed. In the case of a time charter the master must act under the charterers’ orders from the time when the vessel is delivered to the charterers, here that was from September 20 when the vessel was delivered at Genoa to the charterers. When Lloyd Royal Belge Société Anonyme vy. Stathatos*® was decided it had not been determined that the principle of frustration applied to a time charterparty. It was so held two years later in the Bank Line case.** A time charter is a contract for the service of the ship for the carriage of such cargoes as the charterers may select. In the present case they selected steel. ‘The paramount purpose of the charterparty was a voyage to India. Glynn v. Margetson & Co.2" was the case of shippers agreeing to carry a specific cargo— oranges. In that case the shippers could not give orders to depart from the customary route, which was the route customary at the time of the performance of the contract. At the time when the Eugenia approached the war zone the charterers were under a contractual obligation to order her not to proceed. On the charterers’ construction of the charterparty there is a time when the vessel passes out of the charterers’ orders into those of the owners. This is an artificial idea and would not work commercially. The parties agreed to the inclusion of the war clause in the charterparty which was in the Baltime form. ‘The war clause is as much a term of the charterparty as its other clauses. There is nothing peculiar about a time charter on a voyage basis. If ordering the vessel to the war zone was not.a breach of the clause, allowing her to “‘ continue"? when warlike operations were in progress was. Without the owners’ consent the vessel should not have been allowed to enter the canal. The clause should be construed on a commercial basis. The charterers were in breach of the war clause and accordingly the owners are entitled to damages. As to frustration; it is true that the effect of the closure of the canal meant that extra expense would be incurred. The obligation to proceed by the customary route was not affected by the changed circumstances. To proceed by the Cape route did not impose such a fundamentally different obligation as to result 2533 T.L.R, 390; 84 T.L.R, 70. 21 [1893] A.C. a5 26 [1919] A.C. 485.2 QB. QUEEN’S BENCH DIVISION. in frustration within the principle laid down by Viscount Simon in British Movietonews Ltd. v. London & District Cinemas Ltd.?* In the Massalia ** Pearson J. attached undue importance to the master’s obligation to telegraph Genoa on passing the Suez Canal. In Court Line Ltd. v. Dant & Russell Incorporated *° the ship was totally deprived of the power to continue. That was not so here. In W. J. Tatem Ltd. v. Gamboa* the foundation of the contract was destroyed. Here no such fundamentally different situation had arisen from that contemplated by the parties. There was no frustration here. Frustration is a matter of law. The Tsakiroglou case *® shows that attention should be paid to an arbitrator's findings, but they are not conclusive. [Reference was made to the observations of Lord Sumner in Bank Line Ltd. v. Arthur Capel & Co.*9) Michael Kerr Q.C. in reply on the construction of the war clause. On a proper construction of this charterparty, which is a time and voyage charter, when the vessel-left the Black Sea she left under the terms of the contract and she was not under the owners’ or the charterers’ orders. The arbitrator was wrong in holding that the charterers ordered the vessel into the canal. Cur, adv, vult. November 21. ‘The following judgments were read. Lorp Denwine M.R. On July 26, 1956, the Government of Egypt nationalised the Suez Canal. Soon afterwards the United Kingdom and France began to build up military forces in Cyprus. *It was obvious to all mercantile men: that English and French forces might be sent to seize the canal, and that this might lead to it becoming impassable to traffic. It was in this atmosphere that negotiations took place for the chartering of the vessel Eugenia. She flew the Liberian flag. The proposal was to charter her to a Russian state trading corporation called V/O Sovfracht. ‘The Russians wanted her to carry iron’ and steel from the Black Sea to India. The negotiations took place in London between the agents of the parties from August 29 to 28 [1952] A.C. 166; [1951] 2 31 [1999] 1 K.B. 182; [1988] 3 All TLR. 571; [1951] 2 Au E.R. 6t7, E.R. 185. HL, 32 [1962] A.C. 93. 29 [1961] 2 Q.B. 278, 304. 43 [1919] A.C. 435, 455. 80 [1939] 8 All E.R. 814; 44 Com, Cas. 545. 233 GAL 1963 Tae Evaesta234 GA. 1963 ‘Tae Evoenta. Lord, Dennin ieee QUEEN’S BENCH DIVISION. [1964] September 9, 1956. The agents of both sides realised that there was a risk that the Suez Canal might be closed, and each agent suggested terms to meet the possibility. But they came to no agreement. And in the end they concluded the bargain on the terms of the Baltime Charter without any express clause to deal with the matter. That meant that, if the canal were to be closed, they would “' leave it to the lawyers to sort out."” The charterparty was concluded on September 9, 1956, but dated September 8, 1956. The vessel was then at Genoa. By the charterparty she was Jet to the charterers for a “‘ trip out to “India via Black Sea.”” It was a time-charter in this sense, that the charterers had to pay hire for the vessel at a fixed rate per month from the time of the vessel's delivery until her redelivery. The charterers had, however, no wide limits at their disposal. They could not direct her anywhere they wished, but only within the following limits ‘‘ Genoa via Black Sea, thence “to Indi The charter included the printed war clause with- out modification. It was in these terms: ‘'21(A) The vessel, “unless the consent of the owners be first obtained, not to be “ordered nor continue to any place or on any voyage nor be “used on any service which will bring her within a zone which “is dangerous as the result of any actual or threatened act of “war, war, hostilities, warlike operations... . (B) Should “‘the vessel approach or be brought or ordered within such “zone .. . (1) the owners to be entitled from time to time to “insure their interest in the vessel on such terms as they shall ‘‘ think fit, the charterers to make a refund to the owners of “the premium on demand; and (2) . . . hire to be paid for “all time lost.’’ The Eugenia was delivered at Genoa on” September 20. The charterers ordered her to proceed first to Novorossik and then to Odessa (both on the Black Sea) to load. A few days later the charterers sub-chartered her to two other Russian state trading corporations who agreed to pay, by way of freight, whatever the charterers had to pay the owners, plus 5 per cent. The two sub-charterers loaded her with iron and steel goods (joists, girders, etc.). The master signed bills of lading. These made the cargo deliverable to shippers’ order at Vizagapatam and Madras (both on the East Coast of India), freight pre-paid. On October 25, 1956, the Bugenia sailed from Odessa. The customary route at this time to India was still by the Suez Canal. The charterers told the master to cable their agent in Port Said when he was within twenty-four hours’ sailing of2 QB. QUEEN’S BENCH. DIVISION. Port Said. He did so. The Eugenia arrived off Port Said at 11 a.m. on October 30, 1956, and entered the port at 4.80 p.m. At that time Egyptian anti-aircraft guns were in action against hostile reconnaisance planes. It was quite apparent that Port Said and the Suez Canal were zones which were “ danger- “‘ous”” within this war clause. Indeed, on the morning of October 30 the owners’ London agent called on the charterers’ London agent to take action under the war clause to ensure that the ship should not enter Port Said or the Suez Canal. The charterers’ agent in London, however, took no action, He let things be. But at Port Said the charterers’ agent had taken action. He boarded the vessel and stated that he had made arrangements for the vessel to enter the canal the next morning. In consequence, the vessel entered the canal at 9.35 a.m, on October 81 and proceeded in convoy 58 kilometres south. Then the convoy tied up to allow a northbound convoy to pass, Soon afterward English and French aircraft began to drop bombs on Egyptian targets. That evening the Egyptian Government blocked the canal by sinking ships at Port Said and Suez and in the canal and by blowing up bridges. So the Eugenia was trapped where she was. On November 7, 1956, there was a cease-fire. Early in January, 1957, a passage was cleared northwards, But there was no hope of southward passage for a long time. So the Hugenia started to move north. She anchored in Port Said Roads on January 8, 1957. On January 11, 1957, she went to Alexandria and arrived there on January 12, 1957. Meanwhile, however, the charterers, on January 4, 1957, claimed that the charterparty had been frustrated by the block- ing of the canal. The owners denied that it had been frustrated and treated the charterers’ conduct as a repudiation. So, on either view, the charter was at an end. On January 15, 1957, the owners entered into new charterparty direct with the original sub-charterers, This new charter was an ordinary Gencon voyage charter by which the owners agreed to carry the cargo already on board via the Cape of Good Hope to India. The freight was very high, for the freight market had risen rapidly. So much so that the owners did well out of the new charter. Indeed, they might not have suffered any loss were it not for the long spell during which the ship was trapped in, the canal. The owners wish to claim hire so as to cover the period in the canal, but the charterers dispute it. Hence their claim that the charter was frustrated. 285 CAL 1963 Tae Evornta. Lord Denning. MR,CAL 1963 ‘Tae EvoEnta Lord Denning ™M. QUEEN’S BENCH’ DIVISION. [1964} On January 20, 1957, under this new charterparty, the Eugenia left Alexandria and went round the Cape. She arrived at Vizagapatam about April 5, 1957, unloaded part of her cargo'there, then went to Madras and unloaded the rest there, and finished discharging on May. 22, 1957. The southern exit from the canal was not cleared until April, 1957. So the Eugenia arrived at her destination earlier by. going north- ward out of the canal than if she had waited to get out by the southern exit. Such being the facts, the first question is whether the charterers, by allowing the Eugenia to go into the canal on October 81, 1956, were in breach of the war clause. Both the arbitrator and the judge held they were in breach. Mr. Kerr challenged this finding. He said that the war clause 21(A) was of very limited application. It did not apply, he said, to the contract voyage itself. That was specified in the charterparty. Ib was ‘‘a trip out to India via Black Sea,” and impliedly by the customary route. The charterer had no power to alter that trip or to give any orders to the ship to deviate from it. The war clause only applied, he said, to the places in respect of which the charterer had power to direct her, such as the orders to load at a named port in the Black Sea or to discharge at a named port in India, If the charterer ordered her to such a port when it was dangerous, the war clause, he admitted, would apply. But it did not apply, he said, when the ship was just carrying out the contract voyage. Her route in that case was, he said, determined by the contract itself and not by any orders of the charterer. In support of this argument Mr. Kerr urged that, although the charterparty was on a printed form applicable to a time-charter, nevertheless the ‘‘ paramount feature ’” of it was a voyage, and it was to be construed accordingly. He cited Glynn v. Margetson & Co.,! and Temple Steamship Co. Ltd. v. V/O Sovfracht.?, He said that the Zugenia entered the canal by reason of the contract and not by reason of any orders of the charterer and, therefore, that the war clause did not apply. I cannot accept this argument. This is a time charterparty, the essence of which is that the shipowners place the ship at the disposal of the charterers for a time—the charterers paying hire for that time. In some time-charters the time is fixed before- 1 [1893] A.C. 861; 9 T.L.R. 487, 2 (1945) 79 Lloyd's List 1, H.L. BL.2 QB. QUEEN’S BENCH DIVISION. hand, such as six months or 12 months. In other time- charters the time is uncertain and is to be measured by the time occupied by a particular voyage. But in either case the charter» — party is @ time charterparty and the ship is under the charterers’ orders throughout. The charterer must, of course, give his orders within the limits permitted by the contract—if a particular voyage is contracted for he must give orders consistent with it—but still the ship is under his orders none the less. So here the Eugenia was, I think, under the charterers’ orders when she approached the canal, and she was under charterers’ orders when she arrived off Port Said on October 30, 1956; and also when she entered it. Port Said and the Suez Canal were at that; time zones which were dangerous within the war clause. So'they were in breach of it. But even if they did not “ order” her to enter the Suez Canal, they allowed her to ‘‘ continue” when it was obviously dangerous, and were thus in breach of it, Mr. Kerr argued further that, even if the charterers were in breach of clause 21 (A), the only consequence was to bring clause 21(B) and (C) into operation. I do not think so. The owners can take advantage of those sub-clauses and also recover any damages they have suffered. I find myself in complete agreement with the arbitrator and the judge on these points. The second question is whether the charterparty was frus- trated by what took place. The arbitrator has held it was not. The judge has held that it was. Which is right? One thing that is obvious is that the charterers cannot rely on the fact that the Hugenia was trapped in the canal; for that was their own fault. They were in breach of the war clause in entering it. They cannot rely on a self-induced frustration, see Maritime National Fish Ltd, v. Ocean Trawlers Ltd.* But they seek to rely on the fact that the canel itself was blocked. They assert that even if the Eugenia had never gone into the canal, but, had stayed outside (in which case she would not have been in breach of the war clause), nevertheless she would still have had to go round by the Cape. And that, they say, brings about a frustration, for it makes the venture fundamentally different from what they contracted for. The judge has accepted this view. He has held that on November 16, 1956, the charter- party was frustrated. The reason for taking November 16, 1956, was this: before November 16, 1956, mercantile men (even if she had stayed outside) would not have formed any conclusion > [1935] A.C. 524. 237 CA 1963 ‘BE Evcenia ‘Lord Denning MR