Southeaster Maritime Ltd v Trafigura Maritime Logistics Pte Ltd (mv “Aquafreedom”) [2024] EWHC 255 (Comm)

8 February 2024

Ø   Effect of “subs” or “subjects” in charterparty negotiations on formation of contract

Ø   Distinction between a counter-offer and a mere enquiry

Ø   Summary judgment upon construction of emails and WhatsApp communications

Jacobs J held:

·             “Subs” or “Subjects” in a charterparty negotiation are, like “subject to contract” agreements, conditions precedent to the formation of a contract. Until they are satisfied or lifted, no contract is formed: The Leonidas and The Newcastle Express.

·             An arbitration agreement in the agreed parts of the terms does not take effect until the commercial subjects are lifted and a contract is formed.

·             A mere enquiry by an offeree is not a counter-offer, but asking if the offer would agree to vary the terms of the offer is a counter-offer that would reject the original offer.

·             A summary judgment should be given when the respondent does not have a realistic, as opposed to a fanciful, prospect of success, which means a case more than merely arguable: Easyair v Opal Telecom.

·             Court will not refuse summary judgment simply because something may turn up in the trial.

·             WhatsApp communications are generally businesslike and there is no barrier to use them to convey contractual information.

·             Emails and WhatsApp communications, like agreements, will be construed objectively from the perspective of a reasonable person with all the background knowledge reasonably available to the parties in the situation at the time of the contract: Lukoil Asia Pacific v Ocean Tankers.

·             Issues of construction can generally be resolved summarily.

Denver Maritime Limited v Belpareil AS (mv “Kiran Australia” and mv “Belpareil”) [2024] EWHC 362 (Admlty)

26 February 2024

Ø  Anchor dragging culminating in collision

Ø  Finding out effective causes of collision

Ø  “But for” test and “last opportunity” rule

Ø  Apportionment of liability for collision

Ø  Admiralty court process and Elder Brethren’s assistance

Andrew Baker J held:

·             Dragging anchor, right at the outset, is prima facie evidence of negligence – open to the party to rebut it.

·             Failure to arrest the drag, by timely dropping the second anchor, is another negligence.

·             Failure to manage the dangerous situation by timely warning the other ships around is yet another negligence.

·             When in danger, taking an action or making an omission that is not calculated to avoid a collision is negligence. The wrong action of the other ship is not an excuse for not taking an action to avoid a collision even in the situation of the wrong action of the other ship.

·             “But for” test alone does not establish causation, but this does not mean a reincarnation of the “last opportunity” rule. When a set of events starting from the negligence of a ship culminates in a collision, the whole set is one episode, that may be a lengthy one, on which the liability will be found and, if necessary, apportioned. Guidance from The Miraflores and The Abadesa adopted.

·             Liability attaches only to negligent actions/omissions within the episode that are causative of the collision.

·             The “agony of moment” and “horns of dilemma” defences are not available to one by whose fault the perilous situation was caused in the first place.

·             The three possible outcomes of a simple two-ship collision case are that (i) neither is at fault, (ii) one only is at fault, (ii) both are at fault so liability must be apportioned.

·             Procedure for handling the assistance of the Elder Brethren is as set out in The Global Mariner and the Atlantic Crusader. A judge may or may not accept any of the advice of the Elder Brethren.

·             A decision will not be based on a disputed allegation that was not tested during the trial, even if the Elder Brethren supports the allegation.

·             Inventing an untrue version of the collision events will be a wasted effort as VDR records will tell the truth, it can be evidence of the contrary, and will offer a gift to the opponent for cross-examining. However, subsequently admitting the mistake will go to the credit of the witness.

·             A ship that does not offer her VDR records will be subjected to criticism for that.

·             It could be useless for the master to merely tell what he could see from VDR records as that is not his evidence of witnessing the collision. But the master may tell his version and refer to the VDR records to give probable times for the events that he recalls.

·             A party wishing to tender additional submissions must first discuss it with the opponent and seek the permission of the court to tender it. But a judge may resolve it by giving appropriate directions, in his discretion, as to such additional submissions.

·             In this case, the liability was apportioned by 70:30. 70% to m.v. Belpareil (D) that dragged for over 2 hours with a non-performing engine, did not give early warning to other ships, and did not drop her second anchor in the early hours of the episode. 30% to Kiran Australia (C) that decided to go and went astern diagonally to Belpareil in the last 3 minutes before the collision without a reason for it.

Observation:

·             The decision in this case was made on the general principles of negligence rather than by reference to any COLREGs rules.