[2025] EWHC 2089 (Comm)

Fecha: 07-Ago-2025

Middle Volga’s submissions

Middle Volga’s submissions

51.

Mr Wright KC on behalf of Middle Volga submitted that Middle Volga was not the Charterers’ contracting counterparty under the Charterparty for the following reasons:

(1)

The formal Charterparty signed by the Charterers in February 2023 makes it clear that the contracting parties are North Global and the Charterers, not Middle Volga. Insofar as the Recap is at odds with this, the Charterparty would supersede the Recap (Time Charters (7th ed., 2014), para 1.39, citing Electrosteel Castings Ltd v Scan-Trans Shipping & Chartering Sdn Bhd [2002] EWHC 1993 (Comm); [2003] 1 Lloyd’s Rep 190).

(2)

Of the two Defendants, the only possible candidate for Charterers’ counterparty on the face of the documents was North Global. Although the Recap refers to the “registered owners”, it could not be contended that the Charterers contracted with the registered owners named in the Q88 forms (Hai Ocean or GLHI). Furthermore, that would have been inconsistent with the express naming in the Q88 forms of North Global as “disponent owner”. Any ambiguity in the Recap was clarified in the formal Charterparty, which made clear that North Global were contracting as “Owners” and not as agent.

(3)

The clause confirming that the Vessels have no connection with Russia made clear that the Charterers were not willing to contract with a Russian counterparty. That included Middle Volga.

(4)

Nothing in the invoices or the surrounding correspondence relating to the Charterparty suggests that North Global was acting as an agent only.

(5)

If North Global was acting as an agent, it was an agent for Middle Volga as an undisclosed principal. In order to be an undisclosed principal, the agent - North Global - must have acted at the time of contracting within the scope of its actual (express or implied) authority and must have intended (or must have communicated to the principal an intention) to act on behalf of Middle Volga, and the terms of the Charterparty and the surrounding circumstances must not be inconsistent with North Global contracting as an agent for an undisclosed principal (Teheran-Europe Co Ltd v ST Belton (Tractors) Ltd [1968] 2 QB 545, 555; The Astyanax [1985] 2 Lloyd’s Rep 109, 113; Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199, 207; Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10; [2019] 1 WLR 3514, para. 55). 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 (The Magellan Spirit [2016] EWHC 454 (Comm); [2016] 2 Lloyd's Rep 1, para. 27-29; IBM United Kingdom Limited v LZLabs GmbH [2022] EWHC 2094 (TCC), para. 74-80)

(6)

In order to invoke the Court’s jurisdiction against Middle Volga, the Charterers must demonstrate a “good arguable case” that both (a) the terms of the Charterparty or the surrounding circumstances are not “inconsistent with” Middle Volga being able to sue and be sued as undisclosed principal, and (b) Middle Volga and North Global intended that North Global would conclude the Charterparty on behalf of and with the authority of Middle Volga. That will require “convincing proof” that the parties intended Middle Volga and not North Global to be Charterers’ counterparty. The Charterers’ case is flawed on both counts.

(7)

There is at least a strong presumption that a party described as an “owner” is the party responsible for letting the vessel under a charterparty (Humble v Hunter (1848) 12 QB 310; Formby Bros v Formby (1910) 102 LT 116). In Fred Drughorn Ltd v Rederiaktiebolaget Transatlantic [1919] AC 203, 206, Viscount Haldane approved Humble v Hunter and Formby Bros v Formby as “authorities for the proposition that evidence of authority of an outside principal is not admissible, if to give such evidence would be to contradict some term in the contract itself” (see also Diamond Stud Limited v New Zealand Bloodstock Finance Limited [2010] NZCA 423, para. 23).

(8)

In this case, there is nothing in the Charterparty or surrounding circumstances that would allow Humble v Hunter to be distinguished. On the contrary, the current case is the same as that in Humble v Hunter, because:

(a)

The Recap expressly referenced the Q88 forms that described North Global as “disponent owner”. The usual meaning of a “disponent owner” is a company that has chartered the vessel, usually under a time charter, “directly from the registered owners or possibly under a sub-charter from them” (The Astyanax [1985] 2 Lloyd’s Rep 109, 113). That is squarely inconsistent with Middle Volga letting the Vessels directly to Charterers under the Charterparty.

(b)

The clause confirming that the Vessels have no connection with Russia was inconsistent with an intention to contract with Middle Volga.

(9)

The Charterers have no good arguable case that North Global was intended or authorised to contract on behalf of Middle Volga. Middle Volga has the better of the argument on this, for the following reasons:

(a)

As Mr Ryzhik explained in his first witness statement, at para. 7-17, the commercial background to the relationship between North Global and Middle Volga was one of charterer and owner and was established to ensure that counterparties did not contract directly with Middle Volga.

(b)

The existence of the Head Charterparty is inconsistent with a relationship of principal and agent. The existence of the Head Charterparty made it impossible for Middle Volga to have let the Vessels directly to the Charterers.

(c)

The rates of hire payable under the Head Charters and the Charterparty were different (The Magellan Spirit [2016] EWHC 454 (Comm); [2016] 2 Lloyd's Rep 1, para. 34). The differential here is equally inconsistent with an agency relationship between Middle Volga and North Global.

(d)

In April 2022, North Global took steps to set up a Rouble-denominated account “to pay for the ship we rent”.

(e)

The Q88 forms were prepared on the basis that North Global would be named as the “disponent owner”. This is inconsistent with agency.

(f)

In its email dated 27th June 2022, Borachart described the role of North Global and Middle Volga.

(g)

North Global issued hire invoices in its own name and payable into its own account beneficially. Ms Barthet stated in her second witness statement, at para. 14, that Captain Tabur of Spring Marine “believed [Charterers were] paying invoices to the First Defendant’s agent, the Second Defendant”. This is not a statement with any evidential weight, because (i) Captain Tabur’s role is unclear, (ii) there is no contemporaneous documents supporting this statement, (iii) prior to 27th June 2022, Captain Tabur had no understanding of the relationship between North Global and Middle Volga and so raised an enquiry as to North Global and did not challenge Borachart’s reply that North Global was a disponent owner.

(10)

The centrepiece of the Charterers’ case is certain Delivery Protocols issued by the Masters of the Vessels when they were delivered into the Charterparty. There are a number of reasons why those Delivery Protocols do not begin to bear the weight put on them. They are “pro forma operational documents” and the stamps on the Protocols are the Vessels’ stamps, not Middle Volga’s corporate stamps (Mr Ryzhik’s second witness statement, para. 11). The continued use of those pro formas in April and May 2022 is readily explicable given that until late February 2022, Middle Volga chartered out its vessels directly. The Masters who signed the Protocols are neither lawyers nor commercial decision-makers, and did not have authority to contract on behalf of Middle Volga. The purpose of the Delivery Protocols is to record when delivery is made, the condition of the Vessels on delivery, and the bunkers on board. They are not intended to be commercial documents evidencing the identity of the charterer. It was only from March 2022 that North Global acted as an intermediary charterer. Moreover,

(a)

Other than the Protocol for MT Midvolga 3, the names of the charterers were not identified.

(b)

The Delivery Protocol for MT Kupava was signed by the Master of MT Lada and refers to a charterparty dated 14th April 2022, but there is no such charter. The Head Charterparty was dated 21st March 2022 and the date of the Charterparty was 25th March 2022.

(c)

The Delivery Protocol for MT Midvolga 3 refers to the charter fixed between Middle Volga and “Tanker Operation Department Spring Marine Denizcilik”. No one suggests that Spring Marine was a party to the Charterparty.

(11)

The arrests of the Vessels in Turkey are not indicative of there being a contract between Middle Volga and the Charterers. The Defendants’ Turkish lawyers argued that the Charterparty was only with North Global (Mr Ryzhik’s second witness statement, para. 17). The argument presented before the 17th Commercial Court of First Instance of Istanbul noted that “… White Rock only presented the Time Charter agreement executed between North Global and some invoices regarding each claim, but could not present any other valid evidence to support the invoices and could not prove the claim in any concrete way …”.

(12)

If the Charterers’ claim had been made only against North Global, they would (at least under English law) not have been entitled to arrest those vessels as security for their claims. North Global was only ever the time charterer of any of the Vessels. For a vessel to be arrested to secure a maritime claim, the party said to be liable in personam must be either the beneficial owner or demise charterer of that vessel when the action is brought (section 21(4)(b)(i) of the Senior Courts Act 1981). There is no evidence to suggest that Turkish law is any different.