Ceto Shipping Corporation v Savory Shipping Inc (M/T “VICTOR 1”) [2024] EWHC 663 (Comm)

15 March 2024

Ø   Anti-suit injunction in favour of an exclusive jurisdiction agreement.

Ø   Anti-suit injunction to counter duplicity of proceedings in two jurisdictions.

Ø   Mandatory order to consent to a stay-application in a foreign court in favour of an exclusive English jurisdiction agreement.

Ø   Admiralty in rem claim in a foreign court against the proceeds of a judicial sale of a vessel there, when the underlying dispute is subject to an exclusive English jurisdiction agreement.

Andrew Baker J held:

·             Prosecution of a claim in a foreign court in breach of an exclusive jurisdiction agreement will be met with an anti-suit injunction (on the facts of the case).

·             It is vexatious and oppressive for a party to prosecute a claim in a foreign court to determine an issue which the party has already laid before the English court to determine.

·             If a party bound by an exclusive English jurisdiction agreement needs to commence an admiralty in rem claim, in a foreign court, against the proceeds of judicial sale of a vessel there for reasons of procedural compliance there, then that party must voluntarily ask the foreign court to stay the proceedings there in favour of the exclusive English jurisdiction agreement.

·             If party A prosecutes a claim in a foreign court against party B in breach of an exclusive English jurisdiction clause and party B applies to that court for a stay of the proceedings there, the English court would assist party B with a mandatory order that party A consent to the party B’s stay-application in the foreign court.

Luster Maritime SA and another v SMIT Salvage BV and others (M.V. “EVER GIVEN”) [2024] EWCA Civ 260

19 March 2024

Ø   Effect of reaching agreement on certain terms only in the course of negotiations for an intended full contract.

Ø   Effect of reaching an agreement on salvors’ remuneration terms in the course of negotiating a full contract on an amended WRECKHIRE 2010 form.

Lord Justice Males (delivering the unanimous judgement of the Court) held:

·             A person would be entitled to a salvage reward when he voluntarily (without any obligation contractually or otherwise) preserves (or contributes to preserve) a maritime property in danger upon the property being brought to a place of safety. His reward will be limited to the value of the property salved assessed at the time and place of termination of the salvage services. If there is no success (or contribution to ultimate success), there will be no reward (ie. “no cure, no pay”). These principles apply in the absence of a contract fixing the remuneration for the services.

·             When an issue arises as to whether a contract was concluded between the parties, the whole course of negotiations between them will be analysed to determine their intention objectively based on their words and conduct.

·             While words such as “subject to contract”, “subject details” and “fixed on subjects” negate the formation of a contract, their absence do not suggest the contrary.

·             Agreeing certain terms (which in this case was the terms as to the remuneration) in the course of the negotiation for an intended full contract (which in this case was for one on amended WRECKHIRE 2010 form) may be a step on the way to a binding contract rather than conclusion of a standalone contract on the partial terms agreed.

·             Parties’ expectation that the remaining terms are uncontroversial and will soon be agreed does not change the above said position.

·             Mobilisation by salvors on speculation, which they ordinarily do, is not an indication that any contract between them and the owners was concluded.

·             As to the standard of review by an appellate court of a decision made upon a trial, when the decision was based on an analysis of written communication rather than oral evidence, the appellate court is well placed to undertake the analysis as did the trial judge.

·             In this case, reaching agreement on remuneration terms was a step in the negotiation process and not the conclusion of a contract on those terms, hence there being no contract (as held by the Admiralty Judge), SMIT was potentially entitled to a salvage reward in law if it is established that the services they provided were salvage services. Accordingly, the appeal by the owners was dismissed.