White Rock Corporation Ltd v Middle Volga Shipping Company & Ors [2025] EWHC 2089 (Comm)

“FURTHER TO OUR CONVERSATIONS AND AUTHORISATION RECEIVED FROM BOTH PARTIES WE ARE PLESED TO ADVISE THAT THE SUBS LIFTED AND THE MENTIONED 4 VESSELS FIXED CLEAN ON TC AS PER BELOW RECAP. T /CP DATE 25.03.2022 CHARTERERS WHITE ROCK CORPORATION LTD … REGISTERED OWNERS AS PER ATTACHED Q88 TECHNICAL MANAGERS NORTH GLOBAL SHIPPING IMPORT AND EXPORT TRADE LIMITED COMPANY … COMMERCIAL MANAGERS NORTH GLOBAL SHIPPING IMPORT AND EXPORT TRADE LIMITED COMPANY …”

“- OWNERS CONFIRM THAT THE VESSELS HAS NO CONNECTION WITH RUSSIA INCLUDING BUT NOT LIMITTED TO COMMERCIAL TIES …”

“IT IS THIS DAY AGREED between of NORTH GLOBAL SHIPPING IMPORT AND EXPORT TRADE LIMITED COMPANY (hereinafter referred to as the “Owners”) being owners of the good motor/steam vessel called, MT KUPAVA … MT LADA … MT MIDVOLGA 2 … MT MIDVOLGA 3 (hereinafter referred to as “the vessel”) described as per clause 1 hereof and of WHITE ROCK CORPORATION LTD (hereinafter referred to as Charterers”) …” being owners of the of WHITE ROCK CORPORATION LTD (hereinafter referred to as Charterers”) …”

“Pursuant to the Time Charter Party dated on _ of ____ 2022 made between «MVSC» LLC as the Owner and (Insert Name) as the Charterer, m/v [name of Vessel] was delivered by Owner into the service of Charterer, and accepted by Charterer …”

“Pursuant to the Time Charter Party dated on _ of ____ 2022 made between «MVSC» LLC as the Owner and Tanker Operation Department Spring Manne Denizcilik m/v [name of Vessel] was delivered by Owner into the service of Charterer, and accepted by Charterer …”

“Pls see below from Charterers for Owners to clarify soonest; Q// Please clarify who is NORTH GLOBAL SHIPPING IMPORT AND EXPORT TRADE LIMITED COMPANY? - What is the relation with Whiterock, Hai Ocean, Middle Volga, North Global? …”

“Following from owns; ++ Please note that North Global is a disponent owner of all new vessels (M‐2, M‐3, LADA, KUPAVA). All relations between North Global and Middle Volga Shipping Company are under the time charter contracts. Hai Ocean Company is owner of the only one vessel ‐ Lada and we have bare‐boat charter between Hai Ocean Company and Middle Volga Shipping Company.”

“Please be note that we do our best to speed up repair of vessel Midvolga-3. We are ready to provide vessel right now but register doesnt give permission and requires to put vessel on shipyard for repair. Moreover please be note that we incur large losses due to current situation. And we could take a part in tender with choosing insurance company (it takes minimum 2-3 weeks as you know). Dear charteres, please take into account that fact that the incident occurred within the war-risk zone, where the vessel sailed following the Charterer’s orders and is now forced to stay there due to the Charterer’s decision to sail into the area. All payments and coverage including daily hire rate as per the TCP are to continue without any delays. Additionally please be informed that the incident occurred through no fault of the Owners and all possible expenses on the part of the Charterers (if any) are to be recovered from the liable party. The available evidence documentation pertaining to the event will be provided to the Charterers as soon as possible to enable such recovery. From our side we do our best and ask owner to complete repair as soon as possible”

“This letter is to put you on notice that due to absence of your response to any of our multiple letters and requests regarding the withdrawal of the time chartered vessel “Midvolga-3” from the Time Charter Party, as well as absence of any reaction to our requests to provide your representative for measuring the remaining bunkers onboard, we hereby consider your such behavior to constitute your agreement with our position regarding withdrawal of “Midvolga-3” from the TCP. Please, be notified that we consider the vessel as withdrawn from the TCP starting from the 21st of March, 2023 due to non-payments under the Time Charter Party on your part and gross violation of the conditions of the said TCP …”

“The claimant may serve the claim form on the defendant outside of the United Kingdom where, for each claim made against the defendant to be served and included in the claim form - … (b) a contract contains a term to the effect that the court shall have jurisdiction to determine that claim; or (c) the claim is in respect of a contract falling within sub-paragraph (b)”

“In other words, if sub-paragraph (b) is to apply, the foreign defendant against whom it is invoked still needs to be bound by the clause just as much as in sub-paragraph (a). If it were otherwise, it would mean that any exclusive jurisdiction clause which purported to cover the activities of those who were not bound by it would be sufficient to found jurisdiction, provided only that its scope was wide enough to encompass them. That would be very odd indeed. It would mean that if the claimant here wished to sue a foreign defendant in this jurisdiction in relation, somehow, to a contract (including an exclusive jurisdiction clause) to which he was not party, the existence of that clause would be prima facie sufficient. Of course, the claimant might have another route to jurisdiction, through one of the PD 6B gateways (just as Winsopia says here, in the alternative) but that is another matter.”

“However, it has been pointed out that the differing terms of the old gateway (6)(d) and CPR 6.33(B) may have opened up a potential lacuna. This is because the revised wording does not naturally lend itself to the case where the claimant does not contend that the defendant is party to the contract, and the injunction is sought on the basis that if the defendant wishes to assert it is, it must comply with the English jurisdiction clause. To address this issue, it is proposed to amend CPR 6.33(2B) to add in a new sub-rule (c) for clarificatory purposes and this was AGREED.”

“157. The Civil Procedure (Amendment No. 2) Rules 2022 effected further amendments to CPR 6.33(2B), to give effect to the recommendations of a service sub-committee of the Civil Procedure Rules Committee of which I was a member, to add the new “(c)” quoted at [152] above. I explained the background to that change in QBE Europe SA/NV v Generali Espana de Seguros y Reaseguros [2022] EWHC 2062 (Comm), [22]: “Finally, it may be relevant to note that the fact that proceedings have been brought for ASI relief by reference to a contract to which either the applicant, the respondent, or both are said not to be parties also has the potential to raise issues as to the proper basis for serving applications for such relief out of the jurisdiction. In order to remove any scope for doubt on this issue so far as claims to enforce exclusive jurisdiction clauses are concerned, the Civil Procedure Rules Committee has approved an amendment to CPR 6.33(2B) to provide that a claimant may serve a claim form on a defendant outside the jurisdiction where ‘for each claim made against the defendant to be served and included in the claim form … the claim is in respect of a contract’ which ‘contains a term to the effect that the court shall have jurisdiction to determine the claim’ (on the basis that the width of the words ‘in respect of’ will address any issues which might otherwise arise from the quasi-contractual nature of such ASI applications).” 158. It is possible, however, that the rule change may (unintentionally) have done more than that, because the language “in respect of” might not simply have restored the effect of the deleted discretionary gateway para. 3.1(6)(d), but promoted it to a non-discretionary gateway. This is a point perceptively made by the editors of Civil Procedure (2025) who note at [6.33.4.1]: “The new r.6.33(2B)(c) also appears to have the effect that a claim form can be served out of the jurisdiction without the court’s permission not merely where the claim falls within a jurisdiction clause in the contract (or, as appears to be intended, would do so if the claimant and defendant were both parties to that contract) but also where the claim is 'in respect of' a contract containing such a clause. This could be interpreted to apply more broadly than to claims seeking an anti-suit injunction given the breadth of the phrase ‘in respect of’ ….” 159. The sub-committee of the Civil Procedure Rules Committee’s report of 4 May 2022 placed the proposed amendment to CPR 6.33(2B) in the context of (and by way of a reversal of) the earlier deletion of PD 6B para. 3.1(6)(d), and to that extent provides some support for the expanded reading referred to by the editors of Civil Procedure. However, it is fair to say that in including the new paragraph (c) in CPR 6.33(2B), the sub-committee’s focus was very much on claims which would be subject to the EJC, even if not on a contractual basis. That interpretation fits better with sub-paragraphs (a) and (b), and with the fact that the usual protections of the discretionary service out gateway are not available because an agreed forum clause is being given effect (even if on a quasi-contractual rather than contractual basis). If the amendment has gone further than that, the fact that it appears in a provision which permits service without leave and without the discretionary protections of PD 6B will be a relevant factor when testing the connection between the claim and the contract containing the EJC. 160. In this case, the Directors’ position is that they are parties to a contract - the Clause 33 Contract - which on my findings does not contain an EJC, but which is constituted by a clause appearing in a wider contract to which the Directors are not parties and which does contain an EJC. I am not persuaded that this is a sufficient connection to meet the “in respect of” requirements of CPR 6.33(2B)(c), and accordingly I conclude that the Directors were not entitled to serve their Part 8 Claim Form without the leave of the court, albeit that such leave has now been given. 161. Had the Directors been entitled to contractual anti-suit injunctions as parties to clause 42, or as third parties able to enforce clause 42 under the 1999 Act, then I accept that the Directors would have been entitled to serve those proceedings out of the jurisdiction without permission under CPR 6.33(2B), as well as with permission under PD 6B para. 3.1(6)(c). That would also have been the case had I accepted the argument that the Directors were entitled to ASI relief on the quasi-contractual basis, on the ground that the Greek Proceedings were in substance asserting contractual claims under the SHA.” “Finally, it may be relevant to note that the fact that proceedings have been brought for ASI relief by reference to a contract to which either the applicant, the respondent, or both are said not to be parties also has the potential to raise issues as to the proper basis for serving applications for such relief out of the jurisdiction. In order to remove any scope for doubt on this issue so far as claims to enforce exclusive jurisdiction clauses are concerned, the Civil Procedure Rules Committee has approved an amendment to CPR 6.33(2B) to provide that a claimant may serve a claim form on a defendant outside the jurisdiction where ‘for each claim made against the defendant to be served and included in the claim form … the claim is in respect of a contract’ which ‘contains a term to the effect that the court shall have jurisdiction to determine the claim’ (on the basis that the width of the words ‘in respect of’ will address any issues which might otherwise arise from the quasi-contractual nature of such ASI applications).” “The new r.6.33(2B)(c) also appears to have the effect that a claim form can be served out of the jurisdiction without the court’s permission not merely where the claim falls within a jurisdiction clause in the contract (or, as appears to be intended, would do so if the claimant and defendant were both parties to that contract) but also where the claim is 'in respect of' a contract containing such a clause. This could be interpreted to apply more broadly than to claims seeking an anti-suit injunction given the breadth of the phrase ‘in respect of’ ….”

“The party alleging a binding jurisdiction agreement needs to show a good arguable case. In practice this means that: i) The party relying on the existence of the agreement must supply an evidential basis showing that it has the better argument (and not much the better argument). ii) If there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so. iii) The nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the existence of the agreement if there is a plausible (albeit contested) evidential basis for it.”

“79. The relative test has been endorsed “in part” because limb (iii) is intended to address an issue which has arisen in a series of earlier cases and which has to be grappled with but which as a matter of logic cannot satisfactorily be addressed by reference to a relative test: see e g Antonio Gramsci [2012] 2 Lloyd's Rep 365, paras 39 and 44–48, per Teare J citing WPP Holdings Italy Srl v Benatti [2007] 1 WLR 2316, para 44 (“WPP”) per Toulson LJ. This arises where the court finds itself simply unable to form a decided conclusion on the evidence before it and is therefore unable to say who has the better argument. 80. What does the judge then do? Given that the burden of persuasion lies with the claimant it could be argued that the claim to jurisdiction should fail since the test has not been met. But this would seem to be unfair because, on fuller analysis, it might turn out that the claimant did have the better of the argument and that the court should have asserted jurisdiction. And, moreover, it would not be right to adjourn the jurisdiction dispute to the full trial on the merits since this would defeat the purpose of jurisdiction being determined early and definitively to create legal certainty and to avoid the risk that the parties devote time and cost to preparing and fighting the merits only to be told that the court lacked jurisdiction. In Antonio Gramsci and in WPP the court recognised that a solution had to be found. In WPP, at para 44, Toulson LJ stated that the court could still assume jurisdiction if there were “factors would exist which would allow the court to take jurisdiction” and in Antonio Gramsci, at para 48, Teare J asked whether the claimant’s case had “sufficient strength” to allow the court to take jurisdiction. The solution encapsulated in limb (iii) addresses this situation. To an extent it moves away from a relative test and, in its place, introduces a test combining good arguable case and plausibility of evidence. Whilst no doubt there is room for debate as to what this implies for the standard of proof it can be stated that this is a more flexible test which is not necessarily conditional upon relative merits.”

“There was some debate between the parties as to the point at which limb (iii) cut in, the Bank, in particular, being keen to depict it as very much an option of last resort. On the face of things, the idea of the court being “unable to form a decided conclusion” on who has the better case on the evidence appears an improbable one - indeed, both sets of legal advisers are likely to have done exactly that. However, the evidence in some cases will be such that reaching a judicial decision on relative merit will be incompatible with the nature of the hearing, and the injunction not to conduct a mini trial. Further, the limitations of the material may be such that any decision on relative merit will lack the robustness which a judicial decision of this significance requires. Green LJ referred in his discussion of limb (iii) to Teare J’s decision in Antoni Gramsci Shipping Corp v Recoletos Ltd & Ors [2012] EWHC 1887 (Comm), [39] and [45], in which he referred to cases where there is “a conflict of evidence which cannot be resolved without appearing to conduct a pre-trial,” instancing “a stark dispute between opposing witnesses” in a case where “to seek to judge who has the better of the argument on such evidence risks a pre-trial at the interlocutory stage.”

“… The question raised by this telex exchange was clearly no more than the verbal description of Mr. Panagiotis as the party who would conclude the voyage charter with the charterers. With the exception of one reported case to which we refer below, neither Counsel - nor we - could recall any instance in which a person or company had appeared as “disponent owner” in a charter-party otherwise than on the basis that he was himself a charterer of the vessel, usually a time charterer, directly from the registered owners or possibly under a sub-charter from them. We therefore conclude that the course of the negotiations in the present case shows perfectly clearly that the understanding and intention of both parties was that Mr. Panagiotis would conclude a head time charter with the registered owners and that it was on this basis that he would appear in the sub-voyage charter with the charterers as “disponent owner”

“28. A further, and in my view surer, basis for the decision in The Rialto was that the ordinary intention of someone who conducts trading activities through the vehicle of a one-man company is precisely to avoid incurring personal liability under contracts made by the company; and it would be inconsistent with that intention for the company to contract as agent for its beneficial owner. That point can, I think, be generalised in this way. Where a contract is made by or on behalf of a named legal person and there is nothing in the terms of the contract or surrounding circumstances to indicate to the other contracting party that the named person is making the contract as an agent, then the presumption must be that the named person is contracting as a principal. That presumption is capable of being displaced; but in order to displace it, convincing proof is needed that the named party was - contrary to appearances - contracting on behalf of an undisclosed principal. Implication from conduct 29. The most obvious method of proof would be to point to an express agreement establishing an agency relationship. There was in the present case, however, no relevant written agreement between Mansel and VSA and there is no evidence of any relevant oral agreement. In these circumstances the argument that an agency relationship was created has to be based on conduct. In principle what must be shown is conduct from which: (i) a reasonable person in the position of Mansel would have understood that it was authorised to enter into the charter as agent of VSA; and (ii) a reasonable person in the position of VSA would have understood that Mansel was agreeing to do so. As in any case where an agreement is sought to be implied from conduct, it is not enough to point to conduct which was consistent with an agreement or mutual intention that Mansel would contract as agent of VSA. It is necessary to identify conduct which was only consistent with such an agreement or mutual intention and inconsistent with any other intended relationship between the two Vitol Group companies. Put another way, it must be fatal to the implication of an agency relationship if the parties would have or might have acted as they did in the absence of such a relationship: see, by analogy, cases such as The Aramis [1989] 1 Lloyd's Rep 213 and Mitsui & Co Ltd v Novorossiysk Shipping Co (The Gudermes) [1993] 1 Lloyd's Rep 311.”