bailment which may be remotely related but not germane to the central focus of the
present inquiry.
2.3 Reasonableness and Good Faith in Self-Help
Other possible constraints on the operation of the lien clause as provision of a selfhelp remedy are the duty on the part of the shipowner as lienholder to act reasonably
and in good faith. Whether there are legal grounds for such assumptions are
addressed below.
3 Duty to Act Reasonably
3.1 Implied Duty
As set out in the introductory chapter, the first and central issue in the context of the
subject-matter of this chapter is whether exercising his rights under a lien clause in a
charterparty, the shipowner has an implied duty to act reasonably. An implied duty,
if there is one, must surely arise from a term implied in the contract which leads to
the question of what exactly an implied term in English contract law is. The
immediate reaction must be that it is a term that is not expressly stated in the contract
but is nevertheless recognized by the law as a term of the contract. It arises by
operation of law, to put it in shorthand. The English courts have provided welldefined tests derived from a multiplicity of cases to establish the existence of an
implied term. The leading case in this regard is The Moorcock
12 in which Bowen
L.J. held that “if one were to take all the cases, and they are many, of implied
warranties or covenants in law, it will be found that in all of them the law is raising an
implication from the presumed intention of the parties with the object of giving to the
transaction such business efficacy as both parties must have intended that at all
events it should have”. This so-called test of “business efficacy” pointing to the
presumed intention of the parties to identify the existence of an implied term was
repeated in Reigate v. Union Manufacturing Co (Ramsbottom) Ltd.
13 The doctrine
of “presumed intent” postulated by Lord Denning in the following words:
[I]nstead of asking whether the parties impliedly agreed on a term, the Court recognizes that
they never agreed on it at all: because they never envisaged that such a situation would arise.
In such cases the Court seeks to find their “presumed intent”, that is what they presumably
would have agreed if they had envisaged the situation.
14
12 [1889] 14 PD 64, at 68.
13 [1918] 1 KB 592.
14 Lord Denning (1979), p. 41.
Shipowner’s Implied Obligations in a Charterparty Relating to. . .
315
present inquiry.
2.3 Reasonableness and Good Faith in Self-Help
Other possible constraints on the operation of the lien clause as provision of a selfhelp remedy are the duty on the part of the shipowner as lienholder to act reasonably
and in good faith. Whether there are legal grounds for such assumptions are
addressed below.
3 Duty to Act Reasonably
3.1 Implied Duty
As set out in the introductory chapter, the first and central issue in the context of the
subject-matter of this chapter is whether exercising his rights under a lien clause in a
charterparty, the shipowner has an implied duty to act reasonably. An implied duty,
if there is one, must surely arise from a term implied in the contract which leads to
the question of what exactly an implied term in English contract law is. The
immediate reaction must be that it is a term that is not expressly stated in the contract
but is nevertheless recognized by the law as a term of the contract. It arises by
operation of law, to put it in shorthand. The English courts have provided welldefined tests derived from a multiplicity of cases to establish the existence of an
implied term. The leading case in this regard is The Moorcock
12 in which Bowen
L.J. held that “if one were to take all the cases, and they are many, of implied
warranties or covenants in law, it will be found that in all of them the law is raising an
implication from the presumed intention of the parties with the object of giving to the
transaction such business efficacy as both parties must have intended that at all
events it should have”. This so-called test of “business efficacy” pointing to the
presumed intention of the parties to identify the existence of an implied term was
repeated in Reigate v. Union Manufacturing Co (Ramsbottom) Ltd.
13 The doctrine
of “presumed intent” postulated by Lord Denning in the following words:
[I]nstead of asking whether the parties impliedly agreed on a term, the Court recognizes that
they never agreed on it at all: because they never envisaged that such a situation would arise.
In such cases the Court seeks to find their “presumed intent”, that is what they presumably
would have agreed if they had envisaged the situation.
14
12 [1889] 14 PD 64, at 68.
13 [1918] 1 KB 592.
14 Lord Denning (1979), p. 41.
Shipowner’s Implied Obligations in a Charterparty Relating to. . .
315