Introduction
The Tribunal of Milan recently
published a judgment analysing a common occurrence in shipping matters where a
contract of charter is not incorporated into an agreement duly executed by both
parties, but instead is contained in a recap fixture exchanged via email.
The decision was issued in the
context of an insolvency procedure to which an important Italian steel plant
and charterer was recently admitted and is noteworthy as it reaches conclusions
(significantly different from prevailing Italian case law) which deserve to be
carefully considered when concluding charter parties.
The case concerned a recap
fixture contained in an email exchange between a broker and a shipowner.
The recap was quite concise, as it
only stated:
- the vessel's name and main characteristics;
- the charterers' names (by using the expression "account
of"); and
- a few specific provisions of particular importance regarding
the voyage charter stipulated thereby (eg, the loading and discharge ports,
type of cargo and amount of freight).
The full regulation of the
charter was instead contained in another charter party (duly executed),
enclosed in the email reporting the fixture, to which reference was made
through a specific clause in the recap (i.e., "otherwise as per c/p
dated").
The Tribunal of Milan held that
the recap fixture was insufficient evidence of the charter concluded between
the parties. As a result, its terms and conditions were considered
inapplicable.
In particular, the tribunal
stated that:
- since the recap was contained in an email exchange between a
broker and a ship owner, the expression used therein (i.e., "account
of") was incapable of demonstrating the charterers' intention to be
bound by said recap; and
- the other charter party, to which reference was made for the
remaining provisions, had no value at all as it concerned different
parties and a different ship.
In conclusion, the tribunal found
that the recap fixture had failed to demonstrate a valid and enforceable
contract between the parties.
The Tribunal of Milan's judgment
is questionable, as it contradicts prevailing Italian case law, which generally
considers a recap fixture contained in an exchange of emails as sufficient
evidence of the conclusion and the terms and conditions of a contract of
charter, especially where the charter was subsequently performed, at least to a
certain extent.
In fact, while Article 420 of the
Code of Navigation simply requires that a contract be proven in writing, the
wider interpretation mentioned above is based on a general favour to the
business transactions and the opportunity to affirm the validity of all such
agreements which, even if not specifically executed, demonstrate that a charter
contract was concluded in accordance with business customs and practice.
Instead, the Tribunal of Milan
followed the opposite reasoning by referring to the need that in insolvency
procedure cases, there should be a higher level of certainty and evidence.
In any case, the tribunal's
decision is significant, as it illustrates the revival of a formalistic
approach in the shipping industry and can be taken as a warning, especially for
shipowners or charterers that have dealings with Italian companies in financial
distress.
In such circumstances, apart from
the obvious risk assessment relating to the capability of a counterparty to
perform in general, it should be considered that in the event that a dispute
matter ends up in court by applying such a formalistic approach, any contract of
charter not incorporated into an executed contractual document may not be
considered sufficient evidence of the relevant charter.
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