Case report

Two cases on contract formation (salvage services and charterparties). In SMIT Salvage BV v Luster Maritime SA (the Ever Given) [2024] EWCA Civ 260 SMIT were involved in refloating operation of the Ever Given who had grounded in the Suez Canal in March 2023. The owners had agreed on the salvor's remuneration by 28 March 2023 but not on the terms of the contract form and no contract was ever signed but the salvors commenced performance. The salvors claimed remuneration based on the Salvage convention and/or at common law common law rather than in contract and the question that the legal question was whether the salvors were acting under a binding contract for salvage services. The court looked at the body of contemporaneous correspondence and answered in the negative (and the court of appeal dismissed the appeal): notwithstanding performance being commenced, there was no objectively clear intention that an agreement had been reached on terms.

In Southeaster Maritime Ltd v Trafigura Maritime Logistics Pte Ltd the Aquafreedom [2024] EWHC 255 a fixture recap has been agreed on subjects but owners proposed further terms which charterers counter proposed. When owners did not engage further, charterers revoked their counter offer. Was a charter concluded? The court reconfirmed that "subjects" prevent a contract from being formed as per market understanding. When charterers counter-offered, they nullified the original offer which could no longer be accepted. The court thus found for the owners. The court also noted that instant messages such as WhatsApp are as relevant as other means of communication and have equal weight.