32 Austl. & N.Z. Mar. L.J. 1 (2018)

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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 by saying that I never knew Frank Dethridge. That seems a great pity 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 inberth or not), 'butterworthing' (ah yes: the equivalent of a power-shower) and, most mysterious
of all, PANDI. I confess that I originally thought PANDI was the name of some Greek shipowner. It was not until
some time later that someone told 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. How 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 of 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 of 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
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 of
good faith2 . However, in Yam Seng PTE Ltd v International Trade Corporation 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


' Versloot Dredging BV & Anor v HDI Gerling Industrie Versicherung AG & Ors [2016] UKSC 45, [2017] AC 1.
2 Contract Law (9th Ed) 221-222.
[2013] 1 Lloyd's Rep 526.


(2018) 32 ANZ Mar  L J


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