Case Nos: CL-2023-000206 and CL-2023-000207 - [2025] EWHC 1591 (Comm)

Fecha: 26-Jun-2025

The Alleged General Agreement

The Alleged General Agreement

Parties’ positions

29.

The Defendants’ case was that the General Agreement was entered into by the conduct of both Owners and Charterers from early 2016 onwards. Mr Debattista, in opening the case for the Defendants said that ‘the central issue’ in the case could be summarised ‘in one word: conduct’.

30.

The Defendants’ witnesses gave evidence as to the existence of a General Agreement. On analysis, however, their evidence was significantly different as to how and when any General Agreement had been entered into, and did not rest only on ‘conduct’. The evidence of one (Mr Garware) was, in essence, that the General Agreement was formed orally and by correspondence in December 2019, while that of the other (Mr Seewinck) was that it was formed orally or by other conduct in 2016.

31.

Owners made several arguments as to why there was no such General Agreement between the parties.

32.

In particular, Owners submitted that there was no conduct sufficiently clear and unequivocal to establish a contract by conduct.

Owners relied on the inconsistency, both in the Defendants’ pleaded case and between that case and the Defendants’ own witnesses, as to when the General Agreement came into effect, and whether it was a contract formed by conduct, orally, or through correspondence, and contended that this inconsistency weighed heavily against the possibility that an agreement had been reached.

ii)

Insofar as the Defendants relied on an agreement entered into by conduct, Owners contended that the conduct relied upon was explicable by reference to the existing Charterparties and the Defendants’ lack of money, not by there being a new agreement.

iii)

Insofar as the Defendants sought to rely on an agreement reached orally or in correspondence, on the evidence no such agreement was ever reached.

iv)

In light of the frequent draft restructuring proposals exchanged between the parties, the lack of a documentary record of any General Agreement itself weighed heavily against its existence.

In order to avoid liability, the Defendants had to establish that the effect of the General Agreement was that no hire was payable from January 2016 onwards. All the draft restructuring proposals, at most, referred to deferral of hire payments.

vi)

Any argument in respect of waiver or estoppel was reliant on the same factual basis as the alleged General Agreement. Insofar as the Defendants’ case on the General Agreement failed, then their case on waiver or estoppel would also fail.

Law

33.

There was very little issue between the parties as to the legal principles which fell to be applied in this case.