Hersent Offshore S.A. -v- Burmah Oil (1978) 10BLR 1   QBD

© Daniel Atkinson 1999

In Hersent Offshore S.A. -v- Burmah Oil Tankers Ltd. (1978) 10BLR 1 QBD the Contract was the ICE 4th Edition. The Engineer had ordered a variation in the quality and quantity of the Contract Works. It was held that unless the contractor could excuse failure of compliance on the ground of waiver, they had to conform with the requirements of the final proviso of clause 52 as to giving of notice of intention to claim extra payment. The giving of notice was therefore a condition precedent to the entitlement to have the rate fixed by the Engineer. It was held that notice of intention given after completion of the work could not be said to have been given as soon after the commencement of the work as was practicable.

It is suggested therefore that an entitlement under 52(2) to have the rate or price fixed can only arise if the Contractor has given notice. Since Clause 52(2) is the method of valuing delay and disruption caused by a variation order, a contractor will need to ensure that he conforms with the notice requirement. It is also to be noted that the Engineer has no power to fix rates or prices unless the Contractor has given notice or the Engineer himself has given notice to the Contractor. The Clause does not require the Engineer to fix the rates or prices in consultation with the Contractor, but requires him to fix such rate as in the circumstances he shall think reasonable and proper.