Rajeev philip steamship insurance management services limited
Download
1 / 21

Rajeev Philip Steamship Insurance Management Services Limited - PowerPoint PPT Presentation


  • 119 Views
  • Uploaded on

Rajeev Philip Steamship Insurance Management Services Limited. “SUBJECTS” in Charterparty Negotiations - Is there a Contract???. “The concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations.”.

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'Rajeev Philip Steamship Insurance Management Services Limited' - sugar


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
Rajeev philip steamship insurance management services limited l.jpg

Rajeev Philip

Steamship Insurance Management Services Limited


Subjects in charterparty negotiations is there a contract l.jpg
“SUBJECTS” in Charterparty Negotiations - Is there a Contract???

“The concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations.”


Subjects and intentions l.jpg
“Subjects” and Intentions Contract???

Objective Observation/External Evidence

v.

Private Intentions


Mutual expectations l.jpg
Mutual Expectations Contract???

  • Uncertainty and Enforceability

  • Filling the Gaps

    • THE DIDYMI

      “equitably … by an amount to be mutually agreed between owners and charterers”

    • MAMIDOIL-JETOIL v. OKTA

      “even in the absence of express language, the Courts are prepared to imply an obligation in terms of what is reasonable…


Subjects l.jpg
“SUBJECTS” Contract???

A “Fixture” is arrived at by the exchange of “firm offers” between brokers acting on behalf of their principals, an owner and a charterer, and when concluded, that is all terms and details agreed and subjects (if any) lifted, it is an enforceable contract … It is important to note that no fixture has been concluded until all “subjects” have been lifted.” Baltic Code 2003


Subjects6 l.jpg
“SUBJECTS” Contract???

CONDITIONS TO CONTRACT

v.

CONDITIONS TO PERFORMANCE


Subject details l.jpg
Contract???SUBJECT DETAILS”

Thoresen v Fathom Marine [2004] 1 LLR 622

“Otherwise basis Saleform 93 sub details suitably amended also to reflect the above terms. Closing to take place in Piraeus ”


Thoresen v fathom marine l.jpg
Thoresen v Fathom Marine Contract???

Mr. Kokkinis - “as per telcon this is the fixing. Pls do best to get it confirmed timely otherwise sellers may run away”

Mr. Straume - “thus we have full agreement on price/terms, will also forward recap shortly”.


Thoresen v fathom marine9 l.jpg
Thoresen v Fathom Marine Contract???

“I would respectfully suggest that it is in the interests of the chartering business that the Courts should recognise the efficacy of the maritime variant of the well known ‘subject to contract’. The expression ‘subject to details’ enables owners and charterers to know where they are in negotiations and to regulate their business accordingly. It is a device which tends to avoid disputes and the assumption of those in the shipping trade that it is effective to make clear that there is no binding agreement at that stage ought to be respected.”


Subject details10 l.jpg
Contract???SUBJECT DETAILS”.

English Law -

we haven’t reached agreement, and neither of us is bound to do anything

New York (and Norway!)

we will discuss later other terms whose significance is so slight that agreement upon them now is unnecessary for the purposes of binding a contract between us


Losing the thread l.jpg
Losing the Thread Contract???

When a contract by telex or correspondence is alleged, the court will look at the correspondence as a whole and not merely at one or two documents picked out from connected sequence.


Conditions to performance l.jpg
Conditions to Performance Contract???

  • Subject to Oil Major Approval

  • Subject to Passing an Inspection

  • Subject to Board Approval


Unilateral contracts l.jpg
UNILATERAL CONTRACTS Contract???

  • Options

    • Obligations on the party with the option

      KKK v. Johnson: “Subject stem”

  • The position of the party without the option

    • Withdrawal of the offer


Conditional contracts l.jpg
CONDITIONAL CONTRACTS Contract????

  • “Subject Board Approval”

  • “Subject to drawing up the contract in writing”

    -Degrees of Control-


Bound by conduct l.jpg
BOUND BY CONDUCT Contract???

  • Waiver

  • Estoppel

    Oceanografia SA de CV v. DSND Subsea AS

    [2006] EWHC 1360 (Comm)


Oceanografia sa de cv v dsnd subsea as l.jpg
Oceanografia SA de CV v. DSND Subsea AS Contract???

“Offer subject to the signing of mutually agreeable contract terms and conditions”

“Subject to FMA Approval vessel free for winter season, notice to be given by 01/10”

Contract terms were never signed.

No Binding Agreement


Waiver l.jpg
WAIVER Contract???

  • ‘a party has acted in a manner which is consistent only with his having chosen one of the two alternative and inconsistent courses of action then open to him’

  • by words or conduct the election must be communicated in clear and unequivocal terms

  • the party making the election ‘must be aware not only of the facts giving rise to his rights but also of the rights themselves’

    THE KANCHENJUNGA[1990] 1 Lloyd’s Rep. 391


Estoppel l.jpg
ESTOPPEL Contract???

For estoppel:

  • party must either agree or conduct themselves in a such a manner that the other party believes that the other party will not insist on their strict legal rights.

  • In addition the other party must rely on the representation made, such that it would be unjust to allow the representor to go back on the representation.

    -ESTOPPEL-


Oceanografia sa de cv v dsnd subsea as19 l.jpg
Oceanografia SA de CV v. DSND Subsea AS Contract???

Charterers unaware of FMA difficulty:

  • payment of the mobilisation fee

  • signing the on-hire statement

  • accepting the vessel for service

    Charterers aware of FMA difficulty

  • extending the departure date, which was signed by the Charterers

  • signing the off-hire statement

  • agreement by the Charterers to pay the demobilization fee

    -WAIVER-


Conditional contracts20 l.jpg
CONDITIONAL CONTRACTS Contract???

  • Entirely contingent conditions

    - “Subject to weather permitting”

  • “Subject Superficial Inspection”

    - THE MERAK [1976] 2 Lloyd’s Rep 250

  • “Subject to satisfactory completion of two trial voyages”

    - THE JOHN S DARBYSHIRE [1977] 2 Lloyd’s Rep 457


Pratice tips l.jpg
PRATICE TIPS Contract???

  • Private Intentions Irrelevant

  • Awareness of Terms of Art

  • Effect of Genuine “Subjects” v. Conditions to Performance

  • Track progress on terms

  • Unilateral Contracts and Withdrawal

  • Conduct yourself in line with private intentions


ad