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

8th Feb 2024

Charles Holroyd acted for the successful Claimant in an application for summary judgment for a declaration that no charterparty was concluded between the Claimant Owners and Trafigura Maritime Logistics Pte Ltd (“Trafigura”) in respect of the mv “Aquafreedom” (“the Vessel”).   Trafigura contended that negotiations between the parties had resulted in the conclusion of a four-year charterparty on 30 January 2023 (when a recap was issued by brokers) or on 6 February 2023 (when Trafigura sent emails purporting to accept an alleged offer made by Owners on 1 February 2023 and purporting to lift its management approval subject).  Trafigura claimed to have suffered loss of about US$ 15m as a result of Owners’ repudiation of the alleged fixture.

The recap circulated on 30 January 2023 provided that the detailed terms were “As per previously agreed terms sub review both sides” and that it was subject to “Charterers management approval latest 2 working day after all terms agreed”.  The Court rejected Trafigura’s argument that these terms were conditions subsequent and held instead that they were condition precedent, the non-fulfilment of which prevented any contract from arising at all (following The “Leonidas” [2021] 2 Lloyd’s Rep. 165 and The “Newcastle Express” [2023] 1 Lloyd’s Rep. 245).

The Court analysed the written communications between the parties and concluded (i) that the email from Owners on 1 February 2023 had not been an offer capable of contractual acceptance; (ii) that even if it had been, the offer was rejected by virtue of emails from Trafigura on 1 and 2 February 2023 which the Court held to amount to counter-offers; (iii) that the parties had not agreed all the terms by 6 February 2023; and (iv) that even if there had been any offer by Owners capable of acceptance still in existence as at 6 February 2023, it would have been revoked by reason of a WhatsApp message sent between the brokers immediately prior to Trafigura purporting to lift its subject.

Consequently, the Court gave summary judgment in favour of Owner’s claim and against Trafigura’s counterclaim (Trafigura had sought a declaration that a charterparty had been concluded).

The case is significant in further reinforcing the approach to charterparty “subjects” taken in The “Leonidas” and The “Newcastle Express”, which equates their legal effect to that of the phrase “subject to contract”, and in its analysis of what amounts to a counter-offer (and thus something which prevents subsequent acceptance of an earlier offer) in the context of charterparty negotiations.

Charles was instructed by Timon Karamanos-Cleminson and Vassilis Mavrakis of Hill Dickinson International.

Please click here for a copy of the judgment.

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