The judge found that these cases provided clear authority "that the nature of the contractual obligation determines the question of the nature of the steps which a party must take to avoid the impact of a force majeure event, and that a party does not have to perform the contract otherwise than in accordance with the contract in order to avoid a force majeure event." He further noted that the position could be no different where, as here, there was no option as to mode of performance.
Further, the judge dismissed the notion that whether one should be required to accept non-contractual performance depended on the nature or significance of the term which would be compromised. Any such distinction would still, he suggested, inappropriately relegate contractual performance from the "paramount and determinative" question to just one feature to be weighed in the balance. Moreover, this would create undue uncertainty.
For these reasons, the judge concluded that the Owners were not, in the exercise of reasonable endeavours, required to accept payment in EUR and that the imposition of sanctions had properly constituted a Force Majeure Event. Therefore, the Award had been vitiated by an error of law.
The judge considered various arguments advanced by the Charterers suggesting that the tribunal should not have found a sufficient causal connection between non-payment of freight and the prevention or delay of loading or discharging for the purposes of sub-clauses (b) and (c) of the definition of Force Majeure Event. However, the judge found that this was a mixed question of fact and law and that, in all respects, the tribunal's conclusion was within the range of permissible conclusions. Therefore, he concluded, the court could not interfere with this conclusion to uphold the Award on non-expressed grounds, as requested by the Charterers.