AMERICAS BULK TRANSPORT LTD (LIBERIA) V COSCO BULK CARRIER LTD (CHINA) (THE MV “GRAND FORTUNE”)

[2020] EWHC 147 (Comm), Queen’s Bench Division, Commercial Court, His Honour Judge Pelling QC (sitting as a High Court Judge), 30 January 2020

Charterparties (time) – Jurisdiction – Head owner suing sub-charterer as assignee of intermediate charter – Question of identity of intermediate charterer – Construction – Extrinsic evidence – Subsequent conduct

The parties were sub-charterer (Americas) and head owner (Cosco) respectively of the MV Grand Fortune. The intermediate charterer was said by Cosco to be Britannia Bulkers and by Americas to be Britannia Bulk, two related companies which were now both in administration or insolvent liquidation. Britannia Bulkers was the subsidiary of Britannia Bulk, and its charterparty with Cosco had been guaranteed by Bulk. Bulkers’ rights under the sub-charter had subsequently been assigned to Cosco. Cosco had commenced arbitration against Americas as assignee of those rights seeking unmet hire payments, and had obtained an award. Americas had then commenced these proceedings objecting to the jurisdiction of the arbitration tribunal on the basis that its charterparty counterpart was not Bulkers, but Bulk, that Cosco had not taken assignment of any rights from Bulk and that therefore it was not entitled to rely on the arbitration clause therein. The arguments of both parties depended on the correct approach to construction of the charterparty and the disponent owner to which that approach pointed, and also on the importance of a “draft charterparty”, drafted some four months after the recap fixture and naming Bulk as disponent owner.