Threat of Piracy, Hire & Charterparty Terms - The Grande Island

The Commercial Court recently handed down judgment in The Grande Island [2026] EWHC 2136 (Comm) concerning an amended BIMCO Piracy clause 2013 and a dispute as to hire.  

Background 

The Grande Island (“Vessel”) was time chartered on an amended NYPE form for the carriage of wheat from Ghent, Belgium to Warri, Nigeria. A dispute arose between the parties concerning whether the Vessel was on-hire or off-hire for a period of 3 days from the time when the Vessel sailed away from the discharge port of Warri until she returned. 

Owners argued that the decision to sail away from Warri was a sensible decision in the face of a threat of piracy in the Gulf Guinea and that, in accordance with the charterparty, the Vessel remained on-hire. Charterers argued that the Vessel was off-hire for the entire time between her sailing away from Warri until she returned. 

The dispute was referred to arbitration. The Tribunal made an Award in Owners’ favour. 

Charterers made a s69 appeal on a point of law; permission to appeal was granted by HHJ Pelling KC in June 2025. 

The Charterparty 

The BIMCO Piracy Clause 2013 was incorporated into the charterparty at clause 81. Whilst the clause appeared printed in full, the fixture recap made clear that sub-clauses (a) and (b) were deleted.  

In essence, clauses 81(a) and (b) would have:

(a)    permitted Owners to refuse to proceed to, or through, an area at risk of piracy; and

(b)    If Owners did refuse, required Charterers to provide alternative orders and provided that the vessel would have remained on-hire whilst complying with those orders. 

Clause 81(c), incorporated in full, entitled Owners to take ‘reasonable preventative measures’ when proceeding to or through areas of risk.  

Tribunal’s decision 

In the arbitration, the Tribunal found: 

1. Warri was an area exposed to piracy risk; 

2. The decision to sail away from Warri and to return temporarily to Lagos was a reasonable preventative measure in accordance clause 81(c); 

3. In accordance with clause 81(c), the Vessel remained on-hire from the time of her sailing away from Warri until her return. 

Charterers appealed on a question of law, arguing that, because the parties had agreed to delete the express right to leave an area exposed to piracy from the charterparty, Owners would not be entitled to leave the risk area and for the Vessel to remain on-hire.  

Judgment 

HHJ Hodge KC dismissed Charterers’ appeal and upheld the decision of the Tribunal.  

Principles of contractual interpretation 

1. The starting point in interpreting clause 81 of the charterparty was the retained wording of clause 81(c). In other words, the Court will begin by construing the wording which has not been deleted from the charterparty. If the retained wording is unambiguous, the Court said it was impermissible to refer to the deleted wording. The deleted wording can be referred to only, if necessary, as aid to contractual interpretation.  

2. Clause 81(c) was found to be unambiguous, and there was no need, as Charterers had sought to argue, to refer to the deleted provisions in order to understand the meaning of clause 81(c).  

3. The Court was content that the wide wording in clause 81(c) referring to ‘reasonable preventative measures’ was unambiguous: there was no doubt as to its meaning and it was not necessary to construe it by speculating what the parties might have intended by deleting clauses 81(a) and 81(b). There was no reason why leaving an area at risk of piracy would not be considered a reasonable preventative measure: the rights expressly referred to in clause 81(c) were not an exhaustive or limited list. 

4. The Court also held that, even if it was to take into account deleted clauses 81(a) and 81(b) in reaching its conclusion on clause 81(c), its findings would not change. HHJ Hodge KC held that the rights under clauses 81(a) and 81(b) were ‘independent of, additional to and more extensive than’ the rights conferred by clause 81(c), and those separate rights do not impinge upon or otherwise affect the rights under clause 81(c).  

Permission to appeal 

5. HHJ Hodge KC acknowledged that, when permission to appeal was granted by HHJ Pelling KC, the latter was particularly critical of the Tribunal’s decision, which he considered satisfied the ‘obviously wrong’ test for the purpose of s69. The Court noted that the substantive appeal of the decision reached by the Tribunal fell to be reconsidered by the Court, apart from the permission to appeal judgment.  

6. Permission to appeal had been granted on the basis of documents only, and HHJ Pelling KC did not have the benefit of oral argument presented by Counsel in this case. 

7. HHJ Hodge KC returned to the foundational principles of contractual interpretation in support of his finding that recourse to the deleted clauses was impermissible when the wording in the retained clause was unambiguous. 

Decisions of Tribunals 

8. The Court made clear that the English Courts should strive to uphold arbitration awards, and should approach and read the same in a reasonable and commercial way.  

9. Where an experienced Tribunal has not expressly stated the legal principles in terms which are obviously erroneous, HHJ Hodge KC said that the Court should start from the assumption that those principles have been correctly understood and applied.  

Implications 

The decision in The Grande Island is a reminder of the foundational principles of contractual interpretation. For the Shipping industry, the decision is particularly important: amended pro forma contracts are used so frequently. HHJ Hodge KC’s decision is a helpful illustration of the Court’s approach: the deleted provisions should be taken into account only if the retained wording leaves ambiguity. Standard provisions must be amended with care. 

Secondly, the decision in respect of the meaning of ‘reasonable preventive measures’ in sub-clause (c) of the BIMCO Piracy Clause provides helpful guidance. The clause was found to be widely worded, and it was not limited to the short, non-exhaustive list of measures available to Owners set out the printed clause. In the current geopolitical climate, it is helpful for Owners to have further guidance as to their rights in the face of the risk of piracy.