[2025] EWHC 2089 (Comm)

Fecha: 07-Ago-2025

Application to the present case

75.

In my judgment, it is Middle Volga who has the better of the argument, based on the currently available evidence, in support of its case that it was not a contracting party to the Charterparty, in particular the English jurisdiction agreement contained in the Charterparty.

76.

A review of the documents demonstrates that the Charterers contracted with North Global, not with Middle Volga. In this respect, I have regard to the following:

(1)

The Recap - on which the Charterers rely as encapsulating the Charterparty - identifies White Rock Corporation Ltd as the Charterers. There is no similar identification of the contractual counterpart. Instead, there is a reference to (a) the “Registered Owners as per attached Q88”, (b) North Global as the Technical Managers, and (c) North Global as the Commercial Managers.

(2)

The terms of the Recap - read on their own - are not formulated so as to state expressly who is the counterparty to the Charterers. Therefore, if one were to consider the description of the parties in the Recap on its own, without regard to the Q88 forms and to the other documentary evidence, there would be some justification for considering that the Charterers’ counterparty was the registered owner of the Vessels.

(3)

However, when one refers to the Q88 forms (recalling that I have seen updated forms, not contemporaneous forms), the registered owners are identified as Hai Ocean in respect of MT Lada and GLHI in respect of the other three Vessels. GLHI is, of course, not the registered owner. The registered owner of the other three Vessels is Middle Volga, but its name is not to be found in the Q88 forms.

(4)

When the Recap is read together with the Q88 forms, the position is clarified. Significantly, North Global is identified in the Q88 forms as the “Disponent owner” as well as the “Technical operator” and the “Commercial operator”. The reference in the Q88 forms to North Global as the “Disponent owner” suggests to me that North Global had chartered the Vessels directly from the registered owners or, indirectly in the case of MT Lada, and in turn chartered the Vessels to the Charterers. This was the usual sense of “disponent owner” as understood by the Court of Appeal in The Astyanax [1985] 2 Lloyd’s Rep 109 (see also Navig8 Inc v South Vigour Shipping Inc [2015] EWHC 32 (Comm); [2015] 1 Lloyd's Rep 436, para. 97-98). In The Astyanax,the Court considered the status of Mr Panagiotis as the “disponent owner” and in particular whether he contracted as a principal or agent. At page 113, Kerr LJ said:

“… The question raised by this telex exchange was clearly no more than the verbal description of Mr. Panagiotis as the party who would conclude the voyage charter with the charterers. With the exception of one reported case to which we refer below, neither Counsel - nor we - could recall any instance in which a person or company had appeared as “disponent owner” in a charter-party otherwise than on the basis that he was himself a charterer of the vessel, usually a time charterer, directly from the registered owners or possibly under a sub-charter from them.
We therefore conclude that the course of the negotiations in the present case shows perfectly clearly that the understanding and intention of both parties was that Mr. Panagiotis would conclude a head time charter with the registered owners and that it was on this basis that he would appear in the sub-voyage charter with the charterers as “disponent owner”. The issue whether the registered owners can enforce the fixture for the voyage charter with the charterers on the basis that they were the undisclosed principals of Mr. Panagiotis must therefore in our view be approached on this basis. The short answer to this question, as we see it, is that the registered owners cannot maintain this contention, since Mr. Panagiotis was only contracting as “disponent owner” on the basis that he would be the charterer under a head charter from the registered owners in the normal way associated with his description as “disponent owner”. If he was a charterer from the registered owners, then he could not have contracted merely as an agent on their behalf, with the result that they could not contend that they were entitled to enforce the voyage charter as the undisclosed principals of Mr. Panagiotis …”

(5)

Furthermore, the Recap includes the provision that “OWNERS CONFIRM THAT THE VESSELS HAS NO CONNECTION WITH RUSSIA INCLUDING BUT NOT LIMITTED TO COMMERCIAL TIES”. The fact that Middle Volga is a Russian company would indicate that the parties did not intend Middle Volga to be a contracting party. That is not to say that there might not be a breach of this provision in other respects.

(6)

Invoices in respect of hire under the Charterparty were issued by North Global to the Charterers, naming North Global as the “Contractor” and as the beneficiary of payment to its account with Garanti. The invoices in May and June 2022 were on North Global’s letterhead and were signed by North Global. To my mind, this indicates that North Global was acting as a contracting party.

(7)

The emails exchanged on 27th June 2022 demonstrate that the Charterers may not have known with whom they were contracting. They asked who North Global was and what was the relationship between the Charterers, Hai Ocean, Middle Volga and North Global. Borachart’s response was that North Global was that “Please note that North Global is a disponent owner of all new vessels (M‐2, M‐3, LADA, KUPAVA)”, that North Global had chartered the Vessels from Middle Volga, and that Middle Volga had chartered MT Lada from Hai Ocean. There is no evidence that the Charterers took issue with this description of the contractual relations between the parties.

(8)

In February 2023, a formal charterparty was drawn up in accordance with the terms agreed in the Recap and provided by Borachart to the Charterers, who signed the document, although it was not signed by “the Owners”. Although this might mean that the contract remains as contained in or evidenced by the Recap, the formal document provides that North Global contracts with the Charterers as “the Owners” and the Charterers have signed this document recognising North Global as a contracting party.

(9)

After the collision in March 2023, North Global wrote to Spring Marine on behalf of the Charterers stating that “We are ready to provide vessel right now but register doesnt give permission and requires to put vessel on shipyard for repair. Moreover please be note that we incur large losses due to current situation”, referring to its personal position in the respect of the Charterparty. In reply,Spring Marine sent an email to North Global (Xenia Turan), stating, amongst other things, that (1) “vis-à-vis us, as charterers you are in breach of clause 1(a) of the Charter-party by failing to provide us at present with a vessel that has a valid class certificate; (2) “In your message of today you appear to suggest that since the vessel was performing a voyage under our orders at the time of the collision, you as owners are exonerated from liability for our losses resulting from the collision. If that was indeed your position, we would like to inform you that your position is incorrect. Clause 27 of the Charter-party expressly includes collision as an event for the consequences of which you as owners are not exonerated”; (3) “While we assure you of our good will, sympathy and willingness to assist you, we invite you in your future interaction with us to base your demands and suggestions only on the provisions of the Charter-party and English law, because these govern our relationship”. These are statements which expressly identify North Global as the Charterers’ counterparty under the Charterparty.

(10)

The Head Charterparty indicates that North Global chartered the Vessels from Middle Volga. North Global’s email to its bank (Garanti) on 25th April 2022 is consistent with such a charter being in existence, as is the withdrawal of MT Midvolga3 from the Head Charterparty by Middle Volga on 25th March 2023.

77.

The only documentary evidence which supports the Charterers’ case are the Delivery Protocols signed in April-May 2022 in respect of three of the Vessels (but not MT Midvolga 2, which was not delivered to the Charterers). The Protocols referred to “the Time Charter Party dated on _ of ____ 2022 made between «MVSC» LLC as the Owner …”. The Charterers signed the Protocols of Delivery for two of the Vessels. The Master of each of the Vessels signed the Protocols on behalf of the “Owner”, but in doing so the Master applied the stamp of Middle Volga, which Mr Ryzhik described as the Vessel’s stamp, and not the corporate stamp (Mr Ryzhik’s second witness statement, para. 11). This may be explicable by reason of the fact that Middle Volga was the employer of the crew (Mr Ryzhik’s first witness statement, para. 11). In any case, the Protocols of Delivery are not contractual documents. I do not consider that the Protocols of Delivery outweigh the other documents referred to above which support Middle Volga’s case.

78.

The Charterers advance a case that North Global contracted as an agent for Middle Volga. They do not maintain a case of undisclosed principal, but a case based on a “concealed” principal, although I do not think that is strictly correct. The Charterers’ case is more akin to a case where the principal is unnamed or unidentified.

79.

In any event, there is no evidence before the Court that North Global was authorised to contract with the Charterers on behalf of Middle Volga or intended to do so. Moreover, the description of the parties in the documents is - apart from the Protocols of Delivery - supportive of Middle Volga’s case.

80.

It is worth noting the comments made by Leggatt J in The Magellan Spirit [2016] EWHC 454 (Comm); [2016] 2 Lloyd's Rep 1 in connection with the doctrine of undisclosed principal. In that case, Vitol SA (VSA) agreed to supply liquefied natural gas (LNG) and for this purpose it acquired cargoes of LNG. Another company in the Vitol group, Mansel Ltd, entered into a three year time charterparty with the owner, which contained an English jurisdiction agreement. The owner commenced legal proceedings to obtain an anti-suit injunction to restrain VSA from pursuing proceedings under bills of lading in Nigeria. The owner claimed that Mansel Ltd had entered into the charterparty as an agent on behalf of VSA, which VSA disputed. At para. 28-29, Leggatt J said:

“28.
A further, and in my view surer, basis for the decision in The Rialto was that the ordinary intention of someone who conducts trading activities through the vehicle of a one-man company is precisely to avoid incurring personal liability under contracts made by the company; and it would be inconsistent with that intention for the company to contract as agent for its beneficial owner. That point can, I think, be generalised in this way. Where a contract is made by or on behalf of a named legal person and there is nothing in the terms of the contract or surrounding circumstances to indicate to the other contracting party that the named person is making the contract as an agent, then the presumption must be that the named person is contracting as a principal. That presumption is capable of being displaced; but in order to displace it, convincing proof is needed that the named party was - contrary to appearances - contracting on behalf of an undisclosed principal.
Implication from conduct
29.
The most obvious method of proof would be to point to an express agreement establishing an agency relationship. There was in the present case, however, no relevant written agreement between Mansel and VSA and there is no evidence of any relevant oral agreement. In these circumstances the argument that an agency relationship was created has to be based on conduct. In principle what must be shown is conduct from which: (i) a reasonable person in the position of Mansel would have understood that it was authorised to enter into the charter as agent of VSA; and (ii) a reasonable person in the position of VSA would have understood that Mansel was agreeing to do so. As in any case where an agreement is sought to be implied from conduct, it is not enough to point to conduct which was consistent with an agreement or mutual intention that Mansel would contract as agent of VSA. It is necessary to identify conduct which was only consistent with such an agreement or mutual intention and inconsistent with any other intended relationship between the two Vitol Group companies. Put another way, it must be fatal to the implication of an agency relationship if the parties would have or might have acted as they did in the absence of such a relationship: see, by analogy, cases such as The Aramis [1989] 1 Lloyd's Rep 213 and Mitsui & Co Ltd v Novorossiysk Shipping Co (The Gudermes) [1993] 1 Lloyd's Rep 311.”

81.

In circumstances where there is a question whether a party named in the contract is in fact the contracting party, the Court will usually consider the terms of the contract itself and if that is not sufficient to answer the question at hand, the Court will then consider the surrounding circumstances (The Grand Fortune [2020] EWHC 147 (Comm); [2020] 2 Lloyd's Rep 105, para. 19; Chitty on Contracts, (35th ed., 2024), para. 22-060).

82.

If I had limited my examination to the Recap and the Q88 forms, I would have come to the conclusion that the Charterers’ counterparty is North Global, not Middle Volga. In my judgment, the surrounding circumstances make the position even plainer.

83.

By analogy with the doctrine of undisclosed principal, where the person alleged to be a party to a contract is not named in the contract as such, the Court should have regard to the terms of the contract together with the surrounding circumstances with a view to asking whether the contract itself and/or the surrounding circumstances indicate that the named party - in this case, North Global - was contracting other than solely as a principal.

84.

In the present case, in my judgment, there is no convincing proof that North Global intended and was authorised to contract and was understood to be contracting as an agent for Middle Volga.

85.

This is where the Charterers’ case based on limb (iii) of the Kaefer formulation arises. If limb (iii) applies, the Charterers will have discharged their burden of establishing a good arguable case that Middle Volga was and is a party to the Charterparty. The question is whether I am unable to make a reliable assessment of the issue at hand, by reason of the evidence and material currently available.

86.

The Charterers identified a number of oddities concerning the documents embodying the Head Charterparty, as well as the agreement to increase the daily hire rate from US$5,000 to US$12,000 per day per vessel, and the Q88 forms. However, these oddities do not immediately or compellingly suggest that there was no Head Charterparty or that it was a sham. I understand that the purpose behind the charterparty chain was to distance the Russian owners from the charters of the Vessels. There is no evidence to contradict that purpose and indeed the confirmation of no Russian connections in the Recap is consistent with this purpose. In any case, there is no evidence to suggest that the Head Charterparty was a sham in the sense advanced by the Charterers.

87.

I test the position on the assumption that the Head Charterparty was not before the Court in my consideration of the current application. In those circumstances, I would have relied on the evidence outlined above in reaching the same conclusion. Although the Head Charterparty reinforces the conclusion I have reached, it was not a necessary part of the reasoning which led to that conclusion.

88.

In these circumstances, I do not consider that this is a limb (iii) case. On the contrary, I have concluded for the reasons explained above that Middle Volga has the better of the argument on the material available. In these circumstances, the Charterers are unable to discharge the burden of establishing a good arguable case that they contracted with Middle Volga whether directly or through North Global as agent.