Popplewell J

The charterers argued that although the test expressed by the tribunal was the correct one, it fell into error in treating the first limb as meaning that in order to demonstrate that the owners had evinced an intention not to be bound by the charterparty, it was necessary to show that a reasonable man would have concluded that head owners and hence the owners would have refused to comply, or comply promptly, with an order to transit the GOA if and when made. They argued that it was an error of law because the very act of making it plain that consent was (and always would be) entirely depend upon the choice of head owners was itself sufficient to evince the necessary intention; determining whether or not head owners would in fact grant permission was a speculative exercise, which was irrelevant. Where one party put it out of his power to perform his obligations, his self-created incapacity automatically evinced an intention not to be bound. By contracting with head owners on terms which were not back-to-back in respect of GOA consent, the owners had put it out of their own power and control to perform their obligations under the charterparty.