Americas Bulk Transport Ltd (Liberia) v Cosco Bulk Carrier Ltd (China) M.V. Grand Fortune

When a written contract does not identify a party sufficiently clearly, the court may consider extrinsic evidence of what the parties said and did up to the time of contracting. The inquiry is objective: what would a reasonable person with the relevant information have concluded?

Post-contractual evidence is generally immaterial to identifying the parties. An exception arises where an agent contracted for one of several unidentified principals. In that event, evidence of the agent’s subjective intention, including later evidence directed to that intention at the time of contracting, may be considered.

The claimant challenged an arbitral tribunal’s majority award under section 67 of the Arbitration Act 1996. The tribunal had held that the claimant’s counterparty under a recap time charter was Britannia Bulkers A/S, enabling the defendant, as assignee of Bulkers’ rights, to pursue the arbitration.

The recap identified the claimant as charterer but did not identify the disponent owner. The issue was whether the charterparty was with Bulkers or with its associated company, Britannia Bulk Plc, and whether the tribunal had substantive jurisdiction.

1. The section 67 challenge was dismissed. The tribunal had jurisdiction because Bulkers was the intended disponent owner and counterparty under the charterparty.

2. The recap was an email recapitulation of an underlying agreement, not a document that itself sufficiently identified the disponent owner. The reference to the head charter incorporated its contractual terms, subject to logical alterations, but did not incorporate the identity of the head-charterer as the disponent owner.

3. Where the written agreement does not enable the parties to be ascertained, the court may consider what the parties said and did up to the conclusion of the contract. The question is objective: what would a reasonable person furnished with the relevant information have concluded? This followed the approach in Estor Limited v Multifit (UK) Limited [2009] EWHC 2565 (TCC), as approved in Hamid v Francis Bradshaw Partnership [2013] EWCA Civ 470.

4. The relevant pre-contractual evidence showed that Bulkers was the charterer under the head charter and therefore had the power to sub-charter the vessel. Bulk’s guarantee of Bulkers’ obligations reinforced that distinction. The reasonable person would therefore conclude that Bulkers was the disponent owner, notwithstanding that the negotiations were conducted by a Bulk employee from Bulk’s offices.

5. Post-contractual conduct was immaterial to the primary inquiry. Even if it were admissible, payment instructions and letters of indemnity naming Bulkers strongly supported the conclusion that Bulkers was the disponent owner. The later draft charterparty naming Bulk was unreliable and had erroneously identified the wrong group company.

6. Where an agent contracts for two or more unidentified potential principals, the principal may be identified by reference to the agent’s intention when contracting. That principle did not alter the result: the agent’s evidence and the group’s practice showed that the entity which chartered the vessel in was the entity intended to charter it out.

First-instance decision. The judgment determined a challenge to an arbitral award under section 67 of the Arbitration Act 1996.