UNEXPECTED CIRCUMSTANCES AND CARRIAGE OF GOODS BY SEA - ΑΠΡΟΟΠΤΗ ΜΕΤΑΒΟΛΗ ΣΥΝΘΗΚΩΝ ΚΑΙ ΣΥΜΒΑΣΗ ΘΑΛΑΣΣΙΑΣ ΜΕΤΑΦΟΡΑΣ

PREFACE 3 specific contractual provisions in the charterparty, they cannot be sure that the charterparty will be performed undisturbed within the agreed time plan. Random or unpredictable events such as wars, natural disasters, requisition or destruction of the ship, supervening hardship of performance, physical or legal impossibility to fulfil the contractual obligations or any other external factors may, under certain conditions, render the execution of the contract impracticable or hinder the performance of the charterparty substantially. Evidently, it is not possible to predict in advance and with great certainty the occurrence of such situations e.g. a huge earthquake that destroys the infrastructure of the port of loading or discharge 6 . On the other hand, a prudent shipowner is required, before the conclusion of the charterparty, to exercise due diligence and to explore any potential risks that are involved in the performance of the voyage, or in a geographical area. He must, likewise, consider the risk which is increased or is imminent by hostilities or military operations. The evaluation of any information, which the parties will be informed of, concerning the prevailing conditions i.e. at the port of loading, must be deemed as a “sine qua non” condition. Thus, the consideration of the available information and/or any provisions included in the charterparty that will entitle them to discharge, terminate or frustrate the contract must precede its signing. The core of the book, based on these preliminary thoughts, concentrate on the following questions: a) Is the contract still valid after the occurrence of events of such a nature? b) Must the parties perform the contract despite the occurrence of unexpected, accidental or exceptional events? c) Or, conversely, what happens if performance, due to a dramatic change of circumstances, which is fundamental in nature, is impossible and goes to the root of the contract, thus preventing its fulfilment? To clarify: Is the doctrine of “pacta sunt servanda” still a barrier to the “death of the contract” or will the contract of affreightment and/or the contract of carriage be discharged due to the effect of unexpected circumstances? In light of the above remarks, it is obvious that two contradictory principles come into play. On the one hand, there is the doctrine of “pacta sunt servanda” and the principle of “sanctity of contracts”, and on the other hand, the doctrine of “clausula rebus sic stantibus” 7 . According to the latter, contractual obligation still exists if the conditions remain the same with those existing at the period of the drafting of the contract (thus, bending the rule of “pacta sunt servanda”). Moreover, a very important parameter is the wording of the charterparty 8 . This is so because during the negotiations and its conclusion the parties may eliminate or 6. See infra: 14.1. 7. See: BGB §313, Cohn J.: Frustration of Contract in German Law. Journal of Comparative Legislation and International Law, v. 28, (1946), p. 20-21. See also: Von Tuhr & A Esher: Allgemeiner Teil des Schweizerischen Obligationenrechts vol. II, (1974), p. 170-172. 8. Regarding the freedom of drafting the charterparty clauses in Greek Law see: Zygouros L.: The rescission of the contract of affreightment, (Greek and comparative law) (2012), p. 20 et seq.