In Golden President Shipping Corporation v. Bocimar NV (2008) EWHC 130 (Comm) the Commercial Court considered the proper construction of a profit sharing clause in a long term charter, which provided for
“35. five years two months more or less in charterers’ option time charter. Charterers’ option declarable latest at the end of a 54th month for an additional 6th year time charter. Charterers’ option declarable latest at the end of the 66th month for an additional 7th year time charter. The two months more or less in charterers’ option to apply only on the final period.”
“98 (6). For profit sharing purposes, optional year(s) if declared to be considered on their own.” The dispute arose because considerable profits were made in the last two years of the charter, and substantial sums of money turned upon this issue.
It was held, overturning the decision of the arbitrators, that the provision was that where an option was exercised, the year was to be considered for profit sharing purposes. The optional years were to be considered separately from the five year netting off process set out in the balance of the clause. This sentence did not exempt those years from the profit sharing but exempted them from the balance to be struck in respects of profits and losses in the basic charter period. It was held that the words “on their own” plainly required these years to be considered individually, as opposed to being taken in conjunction with the earlier five years.