The MV Good Faith: The Relevance of Good Faith in Shipping Disputes

• Author: Hon Sir Bernard Eder
• Pages: 1-9

(2018) 32 ANZ Mar L J 1

The 44th Annual MLAANZ Conference

Melbourne

4 October 2017

Frank Stuart Dethridge Memorial Address

THE MV GOOD FAITH:

THE RELEVANCE OF GOOD FAITH IN SHIPPING DISPUTES

The Hon Sir Bernard Eder Essex Court Chambers

It is a great honour and pleasure to have been invited to give this opening memorial address today. This is my very

first visit to your wonderful city, Melbourne – and indeed my first time in Australia. So, thank you very much for

the invitation.

I should start b y saying that I never knew Frank Dethridge. That see ms a great pit y because by all accounts, he

was a man of great wisdom, kindness and moderation. I understand that he died just over 40 years ago in 1976.

That was the year I was taken on as a tenant at Essex Court Chambers. When I started in practice all those years

ago, I hardly knew the difference between port and starboard or bow and stern. I remember struggling to understand

endless abbreviations, acronyms and technical jargon – like the meaning of ‘chop’ (charterer’s option, of course),

‘wibon’ (whether in berth or not), ‘butterworthing’ (ah yes: the equivalent of a power-shower) and, most mysterious

of all, PANDI. I confess tha t I originally thought PANDI was the name of some Greek shipowner. It was not until

some time later that someone to ld me that it referred to the P and I Club – although I learnt even later that there

was a famous shipowner whom everyone referred to as Pandi. Ho w confusing.

So, my life in shipping law has been something of a steep learning curve. Thankfully, I was helped along the way

by a number of great lawyers including one o f your former Dethridge speakers – Michael Mustill. He died last

year. He was also a man of great wisdom, kindness and moderation. But he was not alone. There were many others

who helped me along the way – including Tony Colman, another great lawyer and former Head of my Chambers

and High Court Judge, who sadly died a few months ago. So perhaps this is an opportunity to recognise the

important part played by such individuals in the development of maritime law – and to thank them for their

contribution over the years.

When I was asked by Matthew Harvey to give this address, he told me – in no uncertain terms – that it should

have the ‘whiff of ozone’ and need not be too heavy going. I promised that I would try to obey. So, I have chosen

this subject today partly because it seems topical and in the hope that it might provoke some further thought

during this conference.

The notion of good faith is, of course, well known in the context o f the law of insurance. Marine insurance cases

abound with interesting – and difficult points – concerning the nature and scope of the duty of good faith in that

context. The recent – and somewhat controversial - decision of the Supreme Court in the ‘DC MERWESTONE’1

provides an interesting discussion of the nature and scope of the duty of ‘good faith’ in the insurance context.

However, that is not part of my enquiry today.

Instead, my focus concerns what I think is the common belief – certainly in England - that any general doctrine of

good faith outside the field of insurance is a concept foreign to the common law of contract. Professor McKendrick

has explored the main reasons for what he describes as the ‘traditional English hostility’ towards the doctrine o f

good faith2 . However, in Yam Seng PTE Ltd v Inter national Tra de Corpora tion Ltd,3 Leggatt J expressed the

view that such hostility towards a doctrine of good faith in the performance of contracts, to the extent that it still

1 Versloot Dredging BV & Anor v HDI Gerling Industrie Versicherung AG & Ors [2016] UKSC 45, [2017] AC 1.

2 Contract Law (9th Ed) 221-222.

3 [2013] 1 Lloyd's Rep 526.