D chartered his ship to P and was contracted to ensure that the vessel seaworthy and “in every way fitted for ordinary cargo service”. D failed to provide competent personnel to maintain the ship so that it was only at sea for 8 ½ weeks of the first seven months charter of the charter. CA held that the contract would not be terminated since, given the time remaining on the charter and D’s efforts to repair the ship, P had “not been substantially deprived of the whole benefit” of the contract. The term of “maintenance” was held to be neither a condition nor a warranty and was an “innominate” term that would only terminate the contract if its breach had such consequences serious enough to amount to the frustration of the commercial purpose of the venture.
Upjohn LJ: The parties can specify in a contract which terms are conditions and which stipulations. He says seaworthiness cannot be a condition because the slightest thing can lead to its breach (e.g. failing to hammer in a nail) and it cannot have been intended that the contract should be terminated if any of these common/trivial things should happen.