Key takeaways
Contractual provision unambiguous
Deleted words irrelevant.
Contractual provision ambiguous
Deleted words may resolve ambiguity.
Reference to deleted words
Limited inferences can be drawn from deletion.
Olam International Ltd v Pacific Basin Supramax Ltd [2026] EWHC 2136 (Comm) (14 August 2026)
The dispute in this case related to the construction of the standard BIMCO Piracy Clause for Time Charterparties 2013 in circumstances where two sub-clauses, (a) and (b), had been deleted and the parties disagreed on how to construe sub-clause (c).
The Court made it clear that where, as here, the wording of a disputed contractual provision was unambiguous, it was impermissible to refer to deleted words as an aid to construction.
The background facts
The dispute arose out of a time charterparty on an amended standard NYPE form that was contained in and evidenced by a recapitulation email dated 26 October 2021.
The owner chartered the 'Grande Island' for a time charter trip from Ghent to Nigeria with a cargo of bulk wheat.
The parties subsequently disagreed on whether the vessel was on-hire or off-hire during a period of approximately three days when the vessel had sailed away from the roads at the discharge port of Warri.
The owner argued that the decision to sail away was the result of a sensible measure by the master to avoid the dangers of piracy. The charterer did not accept that this decision was reasonable but argued that in any event, this was not relevant because under the charterparty terms, the vessel was off-hire during the entire period between her departure from, and her return to, Warri.
The key charterparty terms
Clause 79 was the BIMCO War Risks Clause for Time Chartering 2013 (CONWARTIME 2013). Clause 79(b) provided:
‘(b) The Vessel shall not be obliged to proceed or required to continue to or through, any port, place, area or zone, or any waterway or canal (hereinafter 'Area'), where it appears that the Vessel, cargo, crew or other persons on board the Vessel, in the reasonable judgement of the Master and/or the Owners, may be exposed to War Risks whether such risk existed at the time of entering into this Charter Party or occurred thereafter. Should the Vessel be within any such place as aforesaid, which only becomes dangerous, or may become dangerous, after entry into it, the Vessel shall be at liberty to leave it.’
Clause 81 was the BIMCO Piracy Clause for Time Charterparties 2013. Clause 81(c) provided in relevant part as follows:
‘(c) If the Owners consent or if the Vessel proceeds to or through an Area exposed to the risk of Piracy the Owners shall have the liberty:
(i) To take reasonable preventative measures to protect the Vessel, crew and cargo including but not limited to re-routeing within the Area, proceeding in convoy, using escorts, avoiding day or night navigation, adjusting speed or course, or engaging security personnel and/or deploying equipment on or about the Vessel (including embarkation/disembarkation)…’
latest bimco piracy clause 2013 for charter parties to apply, delete a + b.
The deleted clauses provided as follows:
‘(a) The Vessel shall not be obliged to proceed or required to continue to or through, any port, place, area or zone, or any waterway or canal (hereinafter 'Area') which, in the reasonable judgement of the Master and/or the Owners, is dangerous to the Vessel, cargo, crew or other persons on board the Vessel due to any actual, threatened or reported acts of piracy and/or violent robbery and/or capture/seizure (hereinafter 'Piracy'), whether such risk existed at the time of entering into this Charter Party or occurred thereafter. Should the Vessel be within any such place as aforesaid which only becomes dangerous, or may become dangerous, after entry into it, the Vessel shall be at liberty to leave it.
(b) If in accordance with sub-clause (a) the Owners decide that the Vessel shall not proceed or continue to or through the Area they must immediately inform the Charterers. The Charterers shall be obliged to issue alternative voyage orders and shall indemnify the Owners for any claims from holders of the Bills of Lading or third parties caused by waiting for such orders and/or the performance of an alternative voyage. Any time lost as a result of complying with such orders shall not be considered off-hire…’
The Tribunal’s award
The Tribunal determined that the owner's decision to leave the approach to the port of Warri in the Gulf of Guinea and return to Lagos due to the risk of piracy fell within clause 81(c)(i) of the BIMCO Piracy Clause, as incorporated into the charterparty, with the consequence that the vessel remained on hire.
The appeal
The charterer argued that, on its proper construction, clause 81(c)(i) did not permit the owner to refuse to remain at Warri, or for the vessel to remain on-hire when it left Warri, in particular given that:
(a) the parties had expressly excluded clauses 81 (a) and (b), which would otherwise have provided the owner with that same entitlement and
(b) the parties expressly agreed that the vessel could withdraw to or wait at alternative areas, instead of waiting at Port Harcourt or Calabar, but had not agreed the same in relation to Warri and
(c) clause 81(c)(i) was a general clause concerning measures other than leaving an area (which would have been governed by clauses 81(a) and (b) had they been incorporated, or by specific agreement which did not extend to Warri).
The law
The general rule is that it is impermissible to rely on deleted words as an aid to construing a contract.
One exception to this rule is where the words to be construed are ambiguous. If they are unambiguous, then reference to any deleted words is unnecessary and impermissible.
In cases of ambiguity, reference to the deleted words might help to resolve that ambiguity. Or the deleted words may indicate what the parties did not agree to.
However, care must be taken as to what inferences can be drawn from deleted words. They may have been deleted for inexplicable reasons or by mistake. Or they may have been deleted because they added nothing to or were inconsistent with the contract.
These principles apply particularly in relation to printed forms, or to clauses derived from such forms; but they may also apply where no printed form is involved.
The Commercial Court decision
Applying the above principles, the Court dismissed the appeal and upheld the Tribunal’s award.
In summary, the Court found as follows:
Clause 81(c)(i) was unambiguous and so it was not permissible to rely on the deletion of sub-clauses (a) and (b) as an aid to interpretation. It was, therefore, unnecessary to speculate why the parties might have wished to delete those sub-clauses.
The parties had expressly included, within the incorporated clause 79(b), a provision whereby the vessel ‘shall not be obliged to proceed or required to continue to or through any area’ when, in the reasonable judgement of the master and/or the owner, it appeared that the vessel may be exposed to 'War Risks' (which were defined as including the risk of 'Piracy'), whether such risk existed at the time of entering into the charterparty or occurred thereafter. That must import a right to leave the area because it could not have been intended that the vessel should remain subject to the risk of piracy by simply putting to within the area and waiting to be attacked or seized.
It was also important to bear in mind the provisions of sub-clauses 81(e) and (f) whereby:
(1) if the vessel was attacked by pirates, any time lost should be for the account of the charterers, and the vessel should remain on hire; and
(2) if the vessel was seized by pirates, the vessel should remain on hire for the first 90 days after the seizure.
Since the charterer clearly had a substantial financial interest in avoiding any attack or seizure by pirates, commercial good sense suggested that sub-clause 81(c) should not be construed restrictively with regard to the range of reasonable preventative measures available to the master and owner to protect the vessel from the risk of piracy.
As clause 79(b) allowed for the reasonable judgement of the master, there was no reason to conclude that clause 81(c)(i) did not similarly allow the vessel to leave the area if that would constitute a reasonably preventative measure to protect the vessel from the risk of piracy.
Even if it were permissible to have regard to the deleted sub-clauses in order to construe sub-clause 81(c)(i), the right to deviate conferred by sub-clauses 81(a) and (b) differed from the right to take reasonable preventative measures under sub-clause 81(c)(i). The sub-clauses operated in different ways and conferred on the owner different rights that were independent of each other. There was no reason to infer that the parties intended sub-clause 81(c)(i) to be cut down by the deletion of those earlier rights.
The bespoke provisions of the Nigerian trading clause did not assist. They established a completely different suite of rights from those conferred by the sub-clauses of clause 81. It was not uncommon for charterparties to provide for multiple, and overlapping, rights. That was particularly true where they were a composite of rights arising under a combination of various bespoke contracts and printed forms.
Comment
The decision is particularly useful for those negotiating and amending standard form contracts, such as the NYPE, because it highlights both the limits and the potential relevance of deleted wording when disputes arise over contractual interpretation. Where the wording that remains in the contract is clear and unambiguous, deleted provisions will generally play no role in the construction exercise. However, where ambiguity exists, deleted wording may assist in identifying what the parties intended not to agree.
The judgment also serves as a reminder that individual amendments should not be considered in isolation. Standard form clauses often operate alongside other incorporated or bespoke provisions that may confer overlapping rights and protections. Deleting one provision will not necessarily remove a similar right arising elsewhere in the contractual framework. Parties should therefore review proposed amendments carefully and consider their effect on the contract as a whole to ensure that the resulting allocation of risk reflects their commercial intentions.
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