Briety Shipping Inc v Trafigura Maritime Logistics PTE Ltd [2026] EWHC 1714 (Comm)

“It has taken a lot of work and Tristan and I met frequently over the Christmas and New Year holidays to develop it. I have to say that this is Tristan's invention with what I hope was useful input from me.”

“I set Tristan the task of finding a new and inventive formula which would encourage charterers to negotiate with us on a bilateral basis and this has been the result.”

“Tristan will send you our draft formula for fixing our newbuilding to you on a "trader minded" profit sharing deal with a base and a cap rate where in the middle the rate is calculated against the traders own profit on the cargo!”

“TTF: 4.5 $/MMBtu JKM: 7 $/MMBtu Floor: $60,000 Ceiling $130,000 Arb = 2.5 (7-4.5) Monthly Rate: = $60,000 * $2.5 = $150,000 but the ceiling kicks in and the rate is adjusted to $130,000.”

“Find attached a sheet that takes TTF going forward and JKM. The Historical tab uses NBP a little further back as we do not have the TTF data. The formula is as follows: =IF(ARB<1$/MM Btu, Floor, Floor*ARB). … As you can see for the historical prices recently and forward view the arb isn’t expected to open.” (3) On the same day Mr Jones sent an email to Mr Jolliffe, in which he said he had: “… shared a file with Trafigura this morning but they have an interest in the mechanism you described yesterday would be happy to share a tiered mechanism as described Please correct me but from what I heard it would look a little like this in a worked example: Floor: $60,000 Arb: JKM – TTF Profit sharing mechanism: <1 = $60,000 1 -1.5 = $60,000 * Arb * 100% 1.51 – 2.0 = $60,000 * Arb * 50% >2.01 = $60,000 * Arb * 25%”

“What we attached is what we have presented to Nicos, I’ve sent an email to Michael this morning if we can also put the following which I think is close to the example discussed at lunch yesterday and used in tankers… Floor: $50,000 Arb: JKM — TTF Profit sharing mechanism: <1 = $50,000 1 -1.5 = $50,000 * Arb * 100% 1.51— 2.0 = $50,000 * Arb * 50% >2.01 = $50,000 * Arb * 25%”

“… On your excel sheet the JKM vs TTF spread is depicted vertically on column I. From top that is 18 Nov 2019 (line 4) to 21 Jan 2019 (line 47) the spread fluctuates from -1.14 to + 1.74. …”. (9) Also on 12 December, after Mr Jones had passed on to Mr Jolliffe Trafigura’s proposals for the floor, ceiling, trigger and hire increase increments, and after a meeting between them at TEN’s offices, Mr Jones emailed Mr Jolliffe with “a 2 page pdf containing the information on the floating rate structure”, which contained a chart headed “JKM-TTF Arb”, and which labelled a line plotting “JKM-TTF”, along withhypothetical illustrations premised on a trigger of US$1.3; the email explained the rationale behind the structure chosen as follows: “1. Two DES destinations have been selected, TTF and JKM, to align the interests of both parties. When the arb opens the cargo will be enjoying more profits and due to the locations and laden passage distances, vessel availability will decrease and market rates will rise, this mechanism captures this 2. 1.3 $/MMBtu is based on the voyage costs of a 174,000m3 XDF HHI built vessel at the charter rate equal to the floor between Rotterdam (TTF) and Japan (JKM)” (10) Mr Jolliffe then forwarded this email and attachment to one of Mr Tsakos’ PAs. The forwarding email said: “As you are aware Tristan Jones and myself went to Geneva on Monday and met with Trafigura. All of you know, Trafigura are one of the world's largest trading houses and this year they will have traded some 15 million tonnes of LNG. As a rule of thumb each 1 million tonnes of LNG requires a ship and currently Trafigura only have 3 ships on period time charter. Patently they need more coverage! Being traders, their trading desk prefer a rate that is attached somehow to the profit they make on their trading desk and we believe that after much discussion we have come up with a formula which actually equates the shipping market to the LNG gas market. Thus with a floor and a cap we are attaching our charter hire to the arbitrage between TTF (The European Hub) and JKM (Far Eastern Hub). As the arbitrage between the two hubs opens, patently it becomes more profitable to send LNG cargoes to the Far East rather than to Europe. Of course, if more cargoes go to the Far East rather than Europe, obviously the time charter rates increase, because there is more cargo going over longer distances thereby reducing the supply of ships. Thus the interests of the trader and the shipowner are aligned. $1.3 / MMBtu is based on the voyage costs of a 174,000 m3 XDF HHI built vessel at the charter rate equal to the floor between Rotterdam (TTF) and Japan (JKM). The base rate below which our charter hire cannot go and as proposed by Trafigura, is $50,000 a day which equates to an arbitrage of $1.22 between JKM and TTF. You will note that in the attachments Tristan is showing a floor rate of $55,000, above which he believes Trafigura will not go. As concerns a cap, that is proposed by Trafigura at $125,000 a day which is equal to an arbitrage between JKM and TTF of $3.40. As concerns a $55,000 floor that is equal to an arbitrage of $1.3 and the $125,000 cap proposed is equal to an arbitrage of $3.40. Attached are firstly, a graph showing how many times the JKM —TTF arbitrage has been above the proposed floor rate of $1.22 between January 2010 to date. As you can see there were considerable periods. Also attached, is a PDF spreadsheet that shows the arbitrage that is required to reach certain charter rates. Tristan has had several conversations with Trafigura Shipping in Geneva, and they in turn have had detailed discussions with their LNG trading floor. Tristan truly believes that a floor of $55,000 and a cap of $125,000 for 5 years is fixable. He doubts that we can achieve more than $55,000 floor but perhaps we try $60,000 floor and $135,000 cap to reach $55,000 / $125,000. There is also a small and by no means certain possibility that Trafigura could take the optional ship using exactly the same structure. We can fix this vessel before the end of the year if we are prepared to follow this profit-sharing formula. They have asked for reply by COB Geneva time tomorrow 13th December 2019.”

“Nicos – Tristan Jones is preparing for you the statistical figures you ‎have requested. As you know the time charter rate proposed is based on the arbitrage between the TTF which is the price of LNG in Europe and the JKM which is the price in the Far East. The price in Europe is always lower because it is nearer to the U.S. but as the price ‎in the Far East goes up proportionally to Europe it suddenly becomes more profitable to sell cargoes in the Far East rather than Europe. This means the traders have to ship the cargoes further, which of course also increases the charter rate as longer distances take ships out of the market for more extensive periods - a large increase in ton miles! Thus, although the TTF and JKM are cargo indices they are also a benchmark for the freight as well, as since when the price in the Far East is much higher than in Europe the freight is bound to increase too. …” (12) On 7 January 2020, Mr Jolliffe sent to Mr Tsakos and Mr Saparis, among others, a presentation prepared by Fearnleys concerning the proposed mechanism by then being discussed, stating: “Please find attached hereto a presentation from Fearnleys regarding the floating rate structure we have been discussing with a number of potential time charterers. All of Trafigura, Gunvor and BP have shown substantial interest and have indicated willingness to time charter ships from us on a bilateral basis using this formula. Please appreciate that this is completely new and therefore no doubt some tweaking will be required using the expertise of our chartering department. It has taken a lot of work and Tristan and I met frequently over the Christmas and New Year holidays to develop it. I have to say that this is Tristan’s invention with what I hope was useful input from me. Because a substantial amount of time work and effort has been expended, please study this carefully and please do not hesitate to contact Tristan if you would like to discuss any aspect of it. I would like to emphasise the following: … 1) … This TTF / JKM floating rate structure enables us to negotiate bilateral time charter deals with charterers as it is currently an exclusive product. 2) LNG traders like this formula as we make money when they make money. Unlike the chartering of oil tankers … in the LNG market the final decision is taken by the actual physical trader of the LNG cargoes themselves. They therefore much prefer a cargo index to a Baltic shipping index. Also, if they wanted to do a deal based on a profit share linked to a Baltic shipping index they would put it out to tender. 3) This formula uses two indices – the European hub (TTF) and the Far Eastern hub (JKM). As the arbitrage between the two hubs widens it becomes more profitable to send more cargoes to the Far East than to Europe as they fetch a higher price in the Far East. The traders make more money per cargo and our time charter rate increases. However, because the ton miles also increase when more cargoes are shipped to the the [sic] Far East rather than Europe so do the shipping rates in general. Therefore, this is an arbitrage between two cargo hubs but ALSO it simultaneously pushes the shipping index up too. It is a cargo hub based index but a hipping [sic] index too. 4) Page 6 of the presentation shows the comparison of what we would have earned in all of the years 2012 – 2019 taking the Fearnleys weekly average assessed spot rates against the TTF/JKM arbitrage floating rate. The red numbers are when our TTF/JKM arbitrage would under perform the spot market and the green numbers are when the TTF/JKM would have outperformed the spot. ….Nicos is in London next week and we can discuss this face to face with Tristan then. However, in the meantime please feel free to comment and/or to discuss this with Tristan. The quicker we can finesse this the quicker we can charter our new building and hopefully other ships too.” (13) On 13 January, Mr Jones sent an email to Mr Saparis and Mr Jolliffe to which was attached a spreadsheet containing various calculations of JKM-TTF and their effect on the hire rate; the JKM minus TTF figure was shown in a column headed “ARB”

“Morning George and Yannis, Hope you both had a good weekend. As discussed last week see attached the profit sharing mechanism for your review in conjunction with looking through slide 5 of the presentation. Some points to note: 1. Column U is the sum of columns 0 through to T 2. Columns 0 through to T are derived by multiplying the % in row 12 * Floor (C5) * the applicable range number in Columns E, G, J or M”

“12 Rate of Hire…. During the applicable 5 (five) years firm period. the rate of hire shall be united states dollars ("firm period hire rate" ): minimum US$ 50,000 (US$ fifty thousand) per day/pro-rata plus profit sharing as per below description and a maximum US1) 145,000 (US$ one hundred forty five thousand). PRICING MECHANISM To be inserted into the TCP based on the daily assessment of the Platts JKM (M-2 with further definition as per further terms) and the ice TTF 'M.; gas price (M-2 with further definition as per further terms) indices of which the difference in the spread between the two indices shall form the basis of the profit sharing as follows: If the monthly average spread is equal or less than $1.300 per mmBTU then the min hire of US$ 50,000 is payable as monthly hire pdpr. Thereafter every 0,1 upwards difference of the monthly average spread, shall amount to US$ 2,425 (two thousand four hundred and twenty-five) up to maximum US$ 5,3 (US$ 145,000) as per below table, which shall be payable to owners as the monthly hire pdpr in question. If the monthly average spread is equal to or more than $5.300 then charterers shall only pay the max US$ 145,000 as hire pdpr… Spread and representative hire rate … If on One Thousandth and Ninety Fifth (1095) day of the charter the forward Baltic LNG freight indices (1, 2 and 3), or any other LNG Freight Index, are mutually deemed mature then owners and charterers shall work together to find a suitable structure inclusive of a minimum US$ 50,000 (US$ Hy thousand) per day/pro-rata floor to transfer the pricing from JKM-TTF linked to Baltic linked. If a mutual decision cannot be reached, then the existing pricing shall continue rolling on 6-month basis on the existing 3Km-rn, structure until such agreement can be reached or the period ends.” 21 Governing Law This HOA and the Charter and any non-contractual obligations arising out of or in connection with either of them shall be governed by and construed in accordance with the laws of England and Wales. Any dispute arising out of or in connection with this HoA, including any question regarding its existence, validity or termination, shall be referred to the High Court of London - English Law to apply. 22 Charterers Management Subject Fee: In the event that Charterers do not lift Charterers Management subject within six months of lifting subject I, Charterers shall pay Owners US$1,000,000 (US$ One Million). In the event that subjects 1 and/or 3 listed in item 23 of this HOA not be successfully lifted this clause shall not apply. 23 Subjects The Charter is subject to: 1. Mutual agreement on all terms of Time Charter Party, to be confirmed by both parties no later than 15:00 London on 15th May 2020 basis this H.O.A. 2. Charterers' Management Approval, to be confirmed no later than six months from agreeing subject I. 3. Charterers detailed review of Vessels specification, to be lifted to later than 15:00 London 15th May 2020 Extensions of subjects not to be unreasonably withheld..”

“(b) The Clause, sub-clause and side headings have been included in this charter for convenience of reference and shall in no way affect the construction hereof. (i) This Charter constitutes the entire agreement between the Parties bound hereby and supersedes and replaces all other written or oral negotiations, representations, warranties, agreements, and undertakings made or entered into by or between Owners and Charterers with respect to the subject matter herein prior to the date of this charter.”

“Tsakos - Nicos has asked to amend the contract so that should JKM - TTF arb open (reverse to current) then Owners should also benefit. Premise of the thought is that it is a profit share and with an arb you will still be in the money.”

“Tristan - I know that it is an awkward subject but Nicos does want you to take the matter of the reverse arbitrage up with Olly. …”

“Hi Richard, Olly and I had a VC with Nikos Tsakos. The premise of the call was for Nikos to re-iterate TEN’s position, which is that Trafigura has a moral responsibility to amend the Hire Rate structure of the Tenergy TCP even if this falls outside of the agreement of the Charter Party. Nikos re-iterated that TEN believes that the Tenergy should be profiting from the reverse arb or should be linked to the Baltic and not on what we have agreed in the contract. We re-iterated our position that the mutual intention of the Charter Party, right from the start of the discussion stage, was for the Hire Rate to be product related and based on the spread between the TTF Price and the JKM Price i.e. a West - East arb. It was not intended to linked to (1) an arb that does not trade (the reverse arb) or (2) The Baltic Index (which is freight liquidity driven rather than product pricing). We advised that we had already sent over proposals but are yet to receive feedback or counter proposals in writing. Do note, our last proposal was sent on the 16th September 2022. We requested once again, that TEN send us in writing an email stating where they believe the TCP has been breached as we still have not received this, despite being told we would do so. Nikos has said that they intend to send us such an email so I will update you when and if we receive it.”

“Thank you for your time on Friday. As discussed, we set out below, in overview, the basis on which we believe that the charterparty does not operate in the way that Trafigura contends, and why it is our view that on a proper interpretation of clause 10, the applicable hire rate, in the present circumstances, should not be "the Floor", and should be calculated by subtracting the lower quotation (i.e. currently the JKM) from the higher quotation (i.e. currently the TTF), and then inputting that spread into Appendix J. • First of all, it is mathematically impossible for there to be a negative spread between JKM and TTF — a "spread" is obviously not a number, it is the difference between two numbers, and the difference between two points cannot be negative. Clause 10 refers throughout to the difference between JKM and TTF as being a "spread", and it would defeat the purpose of clause 10 if it were applied in a way that ignores the intention that the calculation produce a "spread". In short — as the agreement specifically records, it was agreed between us that the hire rate would be based on the spread between two indices, not on whether a number is, in the abstract, mathematically bigger or smaller than another number. • Even if that is not the case, a negative spread is clearly not provided for in the charter and the Hire Rate calculation does not work when the spread is negative. This is because (i) Step 4 requires us to use the spread which results from Steps 1 to 3 as the input in the table at Appendix J, and (ii) clause 10 C) provides that the table in Appendix J is a "full table of applicable hire rates". However, Appendix J contains no negative numbers (not surprising since a spread cannot be negative) and therefore starts at 0 — which means that it is not possible to input a "negative spread" (even if such a concept could exist, which we believe it cannot), and it is clear that there was no expectation that a spread (in the true sense of the word) could ever be negative if the table starting at 0 is described as a "full table". • This must also be read in the context of the reference to "TTF JKM Spread" in Step 4, since it was clearly never the intention that the TTF must always be deducted from the JKM if the TTF exceeds the JKM — and Step 4 shows that there was no uniform approach to the order of the TTF and JKM and that the agreement refers sometimes to the TTF-JKM Spread and sometimes to the JKM-TTF Spread. Clearly, both are equally correct when "spread" is understood to be the difference between two numbers. As we mentioned when we spoke, especially given that we are a publicly listed company, we have a responsibility to properly and fully protect our shareholders' interests. If, therefore, this cannot be satisfactorily resolved in sensible commercial discussions, then we feel that we will unfortunately have very little choice but to start proceedings. If proceedings prove necessary, we are confident that the court will decide in our favour, resulting in a substantial liability for Trafigura (i.e. the missed hire, plus interest). It would, of course, be undesirable for both us and Trafigura to throw away money on legal costs, and so we are hopeful that we can come to a commercial agreement to the satisfaction of both parties.”

“Tristan what does it mean when TTF is higher than JKM apart from disaster?”

“My aim was, sir, as I have just repeated, which was to look at a concept that we were familiar with and that we have been trading as long as we have been trading LNG, which was the Atlantic to Asia arb, and ensuring that the events when we are paying more hire under, ie when tonne−miles increase, we were earning more money and therefore can give owners more money. So, yes, we anticipated from our side it would have a link to the value of the ship.”

“Q. You knew that on 10 May 2022, owners felt the wording covered a both ways arbitrage but were trying to reach an amicable resolution, didn't you? A. No, sir, I didn't and, again, I was not involved in these WhatsApps so I can't comment on Mr Jolliffe's recollection. But, again, I would repeat my point that, as you can see, throughout 2022, Mr Tsakos got more and more frustrated with the deal and with the fact that we wouldn't just change the TCP as he wanted. And I think the way I would read this is he wanted us to include the reverse arbitrage because if the reverse arbitrage had been in play at this point, he would have earned a lot of money, despite the tonne−mileage being very small. Q. Just to test this. You say it is about Mr Jolliffe 's 7 recollection, but actually we have a document here from 11 May where he is updating Mr Tsakos. Are you now suggesting that because your recollection of May 2022 is so clear as to the clear words that were used by Mr Jolliffe and Mr Tsakos on the 11th, that you did not say " if owners feel the wording also covers a both ways arbitrage , why are owners asking to change it and offering incentives to do so?" Is it your evidence that you did not say that? A. My memory from this call, sir, is it was not a categorical point to say it is included. It was a request to change −−to change it. And I believe, at this point, the owners were still invoicing us the floor without any dispute.”

“Hey Nikos, Whilst we appreciate your concern on the recent product market dynamics with regards to our deal together it is difficult for us to grant Tsakos a share on the TTF over JKM arb without changing the existing deal. As discussed this is due to • In a market where TTF is above JKM, shipping becomes weak as a result (due to the reduction in tonne mile) and actually the vessel will have value significantly below the floor (right now we are employing ships at $Ok per day) and therefore there is no 'profit' to share unlike what we have with the existing arrangement in which as the Arb opens shipping benefits from increased tonne miles and therefore higher implied rates. • Even if the above wasn't the case, the existing JKM over TTF pricing fits against the hedges of our long term Cheniere FOB contract and therefore the increase in TTF flat price does not lead to any profit for Trafigura as what we make on the physical we lose on the hedges. • Giving Tsakos profit share on the inverse TTF over JKM therefore is an absolute cost and exposure to Trafigura without any corresponding gain. After our back and forth and internal discussion here we realise this is important to you and we want to start this long term partnership in the right way so can therefore propose the following. Existing TCP is to be changed as follows • The deal will be changed whereby TTF over JKM and JKM over TTF have the same 'profit share' parameters. Practically speaking no profit share shall be paid where the JKM over TTF arb between 1.3 and -1.3 and the below will apply in all other cases. o Floor of 42,000 o Ceiling of 145,000 (unchanged) o Profit Share above $1.3 mmbtu (unchanged) o Hire Increments to be paid of $2,425 per 0.1 mmbtu move in arb. (unchanged) • <!--[if !supportLists]--><![endif]-->This will then give Tsakos the mirrored earning potential on TTF over JKM that you have on the existing JKM over TTF structure If this is something that could be of interest please let us know and we can elaborate further with you and your team. As discussed I'm happy to come and meet you in Zurich this week to discuss further if that works for you…”

“On the other hand, despite Australia’s geographical proximity to Asia, Australian LNG cargoes have previously been delivered to the U.S. between 1997 and 2005, and more recently to Europe following the Russia/Ukraine war, whenever price signals make such trade routes more economically advantageous. The key point here is that while Australian LNG traditionally follows trade routes within the Pacific Basin, it will shift to Atlantic Basin trade routes if there is a compelling economic incentive to do so.”

“I think we have to separate out what is a base case. The base case is you schedule your cargoes on an annual basis . If you are going to Asia, you will need more ships. Now, ultimately, you put that into your base schedule. That is your annual delivery schedule. So, you have factored that in already. You have already taken those ships into your portfolio and you are delivering happily to Asia. That is not ships you are talking out of the spot market. That is your base position . Every portfolio trading company −−Trafigura included and the companies I have worked for −−we have a buffer . We have ships that can go to almost all the locations we ever want them to go to, depending on where we want to go to and when the market goes up or down, we can spot charter in or out. The spot charter market is very, very thin, it is very, very thin. For example, in the report I show, it is less than vessels , which is less than 4% of the overall shipping market of about 600 vessels. So, if you are merrily going along to Asia and suddenly Europe has become your market, that one ship you are taking to Asia, you now need to take to Europe and you are doing your round trips. All of a sudden freight rates have gone up because prices have gone up. That is just a natural reaction. So the spot market, which already thin and illiquid, people start chartering in those ships to be able to pick up cargoes from anywhere they can to take them into Europe or take them into Asia, whichever the premium market is, and that is what drives up the spot market rate. It is the thin illiquid spot market that we are talking about, not the base shipping position. The base shipping position is what everybody already has.”

“41. Accordingly, it is clear that TTF exceeding JKM did not lead to any significant change in LNG trading patterns in 2022 (other than the “arb” remaining firmly “closed” with more US Gulf cargoes remaining in the Atlantic) and did not result in any increase in “tonne-miles” with a consequential knock-on effect of causing freight rates to rise. ii. Freight rates increase in late 2022 was unconnected to TTF exceeding JKM, but instead due to other factors 42. Instead, freight rates rose for a different reason altogether. LNG ships operate as the “pipeline” for the LNG trade. Following the Russian-Ukraine conflict, Russia limited its gas supply to Europe. As the months passed by following the initial invasion, this created great market uncertainty and a concern over perceived shortage of LNG supply into Europe in the future, leading to charterers being willing to out-bid each other to secure available tonnage. Furthermore, in these volatile circumstances charterers would naturally wish to maintain commercial control of their vessels, i.e. they would restrict subletting to other charterers on the market, unless it was for a suitably higher price. This meant that in the second half of 2022, owners and charterers started 'hoarding' their vessels in a rising freight market, leading to a reduction in the supply of tonnage. The combination of the above factors is widely understood to have led to freight rates rising rapidly. 43. Accordingly, whilst it can be said that both the rising TTF price, and the rising LNG freight market, were caused in some way by the Russian-Ukraine conflict, they each increased for different reasons, and were not inter-dependent/inter-related. There was no similar connection between TTF exceeding JKM and the freight market increasing as one sees in an “open arb” scenario when JKM exceeds TTF that leads to a change in trade flows and an increase in “tonne-miles”

“With significantly reduced pipeline flows from Russia now even more drastic following the recent damage to the Nord Stream 1 pipeline, Europe's need for LNG cargoes is clear and the importance of diversifying supply has never been more apparent. Europe has imported 14 MT LNG more than last year. of which half is from the US, All other importing regions have imported less in 03 this year vs last year. Interestingly, the Northern Sea Route has been used less than last year, and Europe's LNG imports from Yamal are increased year-on-year… Looking at the countries which have increased their 03 exports year-on-year, the top five are all in Europe. If Europe were a country, it would be the largest importer in 2022, which it has been several times before, but stands in contrast to 2021 where both China and Japan imported more than all of Europe combined. Tonne-miles have remained below last year's levels this quarter, driven mainly by the lower distances of US volumes, but also the lower distances of Russian volumes. Interestingly, tonne-time has been well above last year's levels despite the low distances. It is thus the voyage durations, and not the distances, that have been driving shipping demand. This is partly due to reduced speed as portfolio players optimise their 'long" shipping portfolios, as well as floating cargoes as a result of both import terminal congestion and vessels waiting to get a better price for their cargo in subsequent months Floating cargoes has not really been a topic since 2020, but current levels are well above the highs seen in 2020, mainly driven by floaters in the Atlantic. With reduced flows from the US to Asia, pressure on the Panama Canal is reduced: there were only. 18 LNG transits completed in 03, versus 33 last year.”

“[8] There is an abundance of recent high authority on the principles applicable to the construction of commercial documents, including Investors’ Compensation Scheme Ltd v West Bromwich Building Society, Investors’ Compensation [2018] 2 All ER (Comm).. Scheme Ltd v Hopkin & Sons (a firm), Alford v West Bromwich Building Society, Armitage v West Bromwich Building Society [1998] 1 All ER 98,..; Chartbrook Ltd v Persimmon Homes Ltd (Chartbrook Ltd and anor, Pt 20 defendants) [2009] UKHL 38,..; Re Sigma Finance Corpn [2009] UKSC 2,.. Rainy Sky SA v Kookmin Bank [2011] UKSC 50,..; Arnold v Britton [2015] UKSC 36,..; and Wood v Capita Insurance Services Ltd [2017] UKSC 24,... The court’s task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. The court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; in striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise or that the negotiators were not able to agree more precise terms. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. It does not matter whether the more detailed analysis commences with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each.”

“The decision of the Supreme Court in Arnold v Britton …signalled a need for caution in relying on considerations of commercial common sense in interpreting contracts. In particular, Lord Neuberger emphasised that this criterion should not be invoked to undervalue the importance of the language used. It is salutary to recall that the persons best placed to judge what is a commercially sensible agreement to make are the parties who have chosen to make it, and courts should be correspondingly wary of rejecting a natural interpretation of contractual language because it appears to produce a commercially unreasonable result. But just as there are degrees of naturalness of linguistic usage, so too there are degrees of unreasonableness of result, ranging from the merely imprudent or surprising to the obviously irrational or absurd.”

“Evidence of pre-contractual negotiations is not generally admissible to interpret the concluded written agreement. But evidence of pre-contractual negotiations is admissible to establish that a fact was known to both parties; to decide (in a consumer contract) whether a term has been individually negotiated; to determine which party put forward a particular term; and to elucidate the general object of the contract. Evidence that parties negotiated on the basis of an agreed meaning is only admissible in support of a claim of estoppel or rectification.”

“52. It is established law that, as stated by Lord Wilberforce in Prenn v Simmonds [1971] 1 WLR 1381, 1384-5, previous documents may be looked at to show the surrounding circumstances and, by that means, to explain the commercial or business object of a contract…It is an approach which, as Lord Wilberforce noted, can be traced back at least to Lord Blackburn’s judgment in River Wear Commissioners v Adamson (1877) 2 App Cas 743, 763, which emphasised the importance in construing written instruments of “seeing what the circumstances were with reference to which the words were used, and what was the object, appearing from those circumstances, which the person using them had in view …” 53. The phrase “genesis and aim of the transaction” is a composite phrase taken by Lord Wilberforce from the judgment of Cardozo J in Utica City National Bank v Gunn, 222 NY 204 (1918), a decision of the New York Court of Appeals, which Lord Wilberforce described as following “precisely the English line” and as a judgment which “combines classicism with intelligent realism”: see Prenn v Simmonds [1971] 1 WLR 1381, 1384F. The approach followed by Cardozo J was, by considering the circumstances which led to the execution of the contract, to identify the purpose of the transaction and to construe the language used in the light of that purpose. Cardozo J concluded (at 208): “To take the primary or strict meaning is to make the whole transaction futile. To take the secondary or loose meaning, is to give it efficacy and purpose. In such a situation, the genesis and aim of the transaction may rightly guide our choice. ” 54. Lord Wilberforce clearly saw no conflict between this approach and the rule, reaffirmed in Prenn v Simmonds, that evidence of negotiations, or of the parties’ intentions, ought not to be received. (It is equally clear that Lord Blackburn had seen no such conflict, as Lord Hope observed in the Chartbrook case at para 4.) What is not permissible, as the decision of the House of Lords in the Chartbrook case confirms, is to seek to rely on evidence of what was said during the course of pre- contractual negotiations for the purpose of drawing inferences about what the contract should be understood to mean. It is also clear from the Chartbrook case that it is not only statements reflecting one party’s intentions or aspirations which are excluded for this purpose but also communications which are capable of showing that the parties reached a consensus on a particular point or used words in an agreed sense. The exclusion of such evidence was justified in the Chartbrook case, not on the ground that it will always or necessarily be irrelevant, but because of the costs and other practical disadvantages that would result from relaxing the rule and because the “safety devices” of rectification and estoppel will generally prevent the exclusionary rule from causing injustice. 55. I would accept that there may be borderline cases in which the line between referring to previous communications to identify the “genesis and aim of the transaction” and relying on such evidence to show what the parties intended a particular provision in a contract to mean may be hard to draw. The present case, however, is not one of them. In my view, it very well illustrates this distinction.”

“Although interpretation clause 21(B) of the agreement provides that clause headings are inserted for convenience only and shall not affect the construction of the agreement, it seems to me that the convenience which they provide is to tell the reader at a glance what the clause is about.”

“…it is clear…that the Court may not rely on a heading to contradict the plain meaning of the relevant clause where it is expressed to be for convenience only.”

“Annex 2 (sections A and B) contains further market analysis regarding the above. In particular, and to illustrate the relative simplicity of the LNG market and the defined nature of the export/import markets, in 2020: (i) 99.8 per cent of exports from Australia (the largest exporter in the Pacific Basin) were delivered to other countries in the Pacific Basin (predominantly the Far East), equating to approximately 1,000 full LNG cargoes. No cargoes were delivered from Australia to Europe; (ii) 84.6 per cent of exports from the US Gulf (the largest exporter in the Atlantic Basin) were delivered to Europe or the Pacific Basin (iii) The Far East was an import market and did not export to Europe. Despite the Pacific Basin (predominantly the Far East) receiving well over 3,000 full LNG cargoes, the Far East did not re-export/reload any LNG cargoes for delivery to Europe.”

“(g) Prior to 2022, generally speaking there were two trading patterns: (i) vessels trading within the Pacific Basin (loading Pacific cargoes for delivery into Asia and returning to a Pacific load port) and (ii) vessels trading within the Atlantic Basin (loading Atlantic cargoes for delivery into Europe and returning to an Atlantic load port). When the “arb” was “open”, some Atlantic vessels shipped cargoes from the Atlantic to Asia instead of Europe, and typically returned in ballast to the Atlantic before performing another “open arb” voyage or resuming intra-Atlantic trading. In 2022, more vessels trading in the Atlantic Basin remained in-basin, performing Atlantic-to-Europe voyages instead of Atlantic-Asia-Atlantic voyages. Those were not ships that were “available into the Pacific Basin” in the sense of being available to load from Pacific Basin ports such as Australia. The Pacific Basin already had sufficient vessels performing Pacific-Asia-Pacific voyages. As such, the increased number of vessels remaining in the Atlantic would not cause any “scarcity” of vessels available for loading in the Pacific Basin. The CER provides no evidence that there were fewer ships available for loading in the Pacific Basin in 2022. On the contrary, Australia continued to export approximately the same volume of cargoes to Asia in 2022 as it had done in previous years (DER §33/ Figure 3), which would suggest that there was no shortage of available tonnage in the Pacific… (i) More generally, in neither the CER nor JM have I seen any data supporting an imbalance of fleet supply in 2022. If anything, I would assume there was an over-supply (globally) of vessels since far fewer Atlantic basin vessels were engaged on longer voyages to Asia, reducing overall tonne-miles for the global fleet and thereby increasing global LNG vessel supply. There was no basin-specific “scarcity” that resulted in “freight tension” between the basins. Therefore, I do not agree with CER §7.3.4(b)(iii), that traders seeking to load in Asia (I assume this mainly refers to loading in Australia or other Pacific Basin export countries, since not many cargoes are loaded in “Asia”) would face scarcity, pushing up freight rates “there”, i.e. in Asia (or the Pacific Basin). (j) On the contrary, freight rates in both the Atlantic and Pacific Basins and intra-basin (i.e. BLNG routes 1-3) all increased in 2022 at roughly the same time, so I see no evidence of “freight tension”

“35. Vessel ‘hoarding’ tends to occur after unexpected events such as Fukushima and the Ukraine war, because those extreme events create market panic and a strong incentive for charterers to retain control of their vessels amid heightened market uncertainty. It is not caused by whether one cargo index exceeds the other. 36. For example, and as explained at DER §§42-43, such vessel ‘hoarding’ was a response to the market turmoil and uncertainty created by the Ukraine war (an unexpected one “black swan” geopolitical event), which caused charterers to hoard vessels in order to ensure that they retained control over tonnage. It was not the result of TTF>JKM by a particular amount. The events would have led to vessels being hoarded even if TTF and JKM had been equal, or even if JKM>TTF. In other words, unlike an “open arb” scenario where JKM>TTF by a sufficient amount has an observable and consistent cause and effect relationship with freight rates (due to vessels proceeding on longer voyages leading to vessel scarcity), there is no equivalent correlation between TTF>JKM by any particular amount and charterers ‘hoarding’ vessels.”

“39. In any event, in my opinion, to the extent an increase in ‘idling’ time could be predicted if imports into Europe increased, and that in fact occurred after Russia invaded Ukraine, its impact on freight rates would relatively limited. Particularly since its impact on LNG carrier availability would be offset by the increased availability of LNG carriers resulting from the substantial decrease in tonne-miles as a result of more vessels remaining in the Atlantic basin, as explained above. 40. I would draw a comparison with the impact of JKM>TTF, which leads to a very substantial change in voyage length for each LNG vessel of about an additional 25-58 days that each ship is out of the market. That significantly increases tonne-miles. By contrast, a ship performing a US-to-Europe 28 day roundtrip voyage which spends, for instance, 5-10 extra days ‘idling’ has far more limited impact. I have not seen any supporting data in the CER or JM to show what impact owners/charterers would reasonably have expected in 2019/20 for increased European discharges to have on ‘idling’, or what impact ‘idling’ in fact had in 2022.”

“Both parties have relied upon factual matrix, it may or may not be permissible, as to the source of the $1.30 in the time charter. We have relied on the voyage charter figure. Trafigura have said, no, Mr Murley showed the comparative exercise on his screen to Mr Jolliffe in a meeting on 25 February 2020, and that is how we got to the figure doing this approach. So, Dr Odedra has also here done the approach. Gets nowhere near $1.30 on that and that is where it goes to.”

“It is not, to my mind, an appropriate approach to construction to hold that, where the parties contemplated event 'A', and they did not contemplate event 'B', their agreement must be taken as applying only in event 'A' and cannot apply in event 'B'. The task of the court is to decide, in the light of the agreement that the parties made, what they must have been taken to have intended in relation to the event, event 'B', which they did not contemplate. That is, of course, an artificial exercise, because it requires there to be attributed to the parties an intention which they did not have (as a matter of fact) because they did not appreciate the problem which needed to be addressed. But it is an exercise which the courts have been willing to undertake for as long as commercial contracts have come before them for construction. It is an exercise which requires the court to look at the whole agreement which the parties made, the words which they used and the circumstances in which they used them; and to ask what should reasonable parties be taken to have intended by the use of those words in that agreement, made in those circumstances, in relation to this event which they did not in fact foresee.”

“The standard of proof remains the civil standard of the balance of probabilities. However, since the alleged intention contradicts the written instrument, “convincing proof” is required to contradict the inherent probability that the written instrument truly represents the parties’ intention because it is a document signed by them. Equally, “certainty and ready enforceability would be hindered by constant attempts to cloud the issue by reference to pre-contractual negotiations”

“39. There was a time, before Joscelyne v Nissen [1970] 2 QB 86, when it was thought by some that the first type of case was the only type for which rectification was an available remedy. Absent an earlier binding contract there was nothing upon which an equity of rectification could be based: see per Lord Hoffmann in Chartbrook at para 59, referring to Lovell & Christmas Ltd v Wall (1911) 104 LT 85, 88 per Cozens-Hardy MR. Rectification of a mistaken document (eg a deed of conveyance) made pursuant to an existing contractual obligation would be granted almost as a kind of specific performance. If the claimant could show that the later document failed to implement the earlier contract, objectively construed, then it would be rectified so that it did. It would be irrelevant, in Lord Hoffmann’s view, that the subjective intentions of one or more of the parties differed from its meaning objectively construed.”

“Supersession 49. The buyers are not entitled to rectification unless they establish that the MOA was intended by the parties to embody the provisions of the recap as to payment of the price without alteration… 59. In the present case it was for the buyers to establish their entitlement to rectification and to do so convincingly. They were, however, at least halfway there in that it was common ground that the recap was a contract. Moreover, the meaning of the recap ‘‘is not a matter of proof. It is a question of construction’’: per Hoffmann LJ in Britoil. The MOA does not bear the same meaning as the recap. Accordingly the buyers would be entitled to rectification if there was no intention on the part of the parties to vary the agreement. Since the onus of proof lies on the buyers I am prepared to accept that it was for them to establish that there was no intention to change. In practical terms that may be a light burden if, on the facts, no one suggested that there was any change involved. 60. But the arbitrators have held that, although there was a concluded agreement when the recap was sent out, that agreement was superseded by the final signed contract, ie the MOA, which was intended to record their final agreement: para 41 of the award. By that I take them to mean that the MOA was intended to be a complete replacement for the recap, to the exclusion of whatever had gone before, and so that the agreement between the parties was to be found within, and only within, the MOA. That that is what they meant is apparent from their reference in para 31 of the award to their experience that, where a formal MOA is drawn up after terms have been agreed, the parties’ intention is generally to record ‘‘exclusively and comprehensively’’ the agreement between the parties, and in para 41 to the fact that that assumption was not rebutted in this case. As Rix LJ put it in HIH Casualty & General Insurance Ltd v New Hampshire Insurance Co [2001] Lloyd’s Rep IR 596,page 619: Where . . . one contract has been intended to supersede an earlier contract, it must follow that the parties’ contract must be found exclusively in the later contract. Thus the earlier contract cannot be used to add to, or modify the later contract.”

“It is true that there were no further negotiations between the recap telex (28th October) and signature of the Booking Note (30th October); but neither the documents nor the context lend support to the notion that the later Booking Note contract is to be incorporated in, or must give way to, the prior contract evidenced by the recap telex. It follows that, in all the circumstances, the correct inference to draw is that the Booking Note contract was intended to govern”

“…Furthermore, where there is an entire agreement clause this may tend to show in fact no inconsistent governing intention has subsisted and that hence no basis for rectification has arisen because the parties have intended to be bound by the document in the material respects regardless of prior or other intentions (Spry on Equitable Remedies 5th Edition at p.612.)”

“I mention briefly an argument of Mr Ho, namely that clause 11.1, the entire agreement clause in the Settlement Deed, would tend to show that no basis for rectification could have arisen because the parties intended to be bound by the document in the material respects regardless of prior or other intentions: see Phillips Petroleum Co UK Ltd v Snamprogetti Ltd [2001] EWCA Civ 889 at [32]. It was not Mr Ho’s submission that the mere inclusion of an entire agreement clause in a contract or deed would prevent a claim to rectification arising: such an argument was rightly rejected by Christopher Pymont QC, sitting as a Deputy High Court Judge, in Surgicraft Ltd v Paradigm BiodevicesInc [2010] EWCA 1291 at [70]-[74]. His was the more limited argument that the inclusion of the entire agreement clause should be given evidential weight in considering the parties’ intentions. On my findings, this issue does not arise but for completeness I should record that the presence of the entire agreement clause in this case throws no light on the parties’ actual intentions and I have no evidence to suggest that its inclusion was given any particular thought in the drafting process.”

“No signed HOA. This is not funny. Why won't he sign it (a non binding document)? Is there something wrong ?” and in an email to Mr Jones the following day Mr Jolliffe said: “Despite the fact that it is 11.30am in Geneva I still have no signed HOA. It is non binding so shouldn't be a problem for Olly and Nicos wants it. Why is it such a problem? I promised it to Nicos early this morning based on your call with Olly”

“Good afternoon Yannis, Pleased to attach Charterers comments to the TCP. Please note that Clauses 10 are still under review to ensure that we have the required details to transfer the HOA into a fully operational TCP clause. No intention here to change form [from] the agreed but for completeness sake as we have discussed before. Clause 19 still to be checked by Trafigura credit. Once you have had time to review be good to talk through the TCP and comments made…”

“47. Confidentiality and Construction (i) This charter constitutes the entire agreement between the Parties bound hereby and supersedes and replaces all other written or oral negotiations, representations, warranties, agreements, and undertakings made or entered into by or between owners and Charterers with respect to the subject matter herein prior to the date of this charter.”

“it must be shown: first, that one party A erroneously believed that the document sought to be rectified contained a particular term or provision, or possibly did not contain a particular term or provision which, mistakenly, it did contain; secondly, that the other party B was aware of the omission or the inclusion and that it was due to a mistake on the part of A; thirdly, that B has omitted to draw the mistake to the notice of A. And I think there must be a fourth element involved, namely, that the mistake must be one calculated to benefit B. If these requirements are satisfied, the court may regard it as inequitable to allow B to resist rectification to give effect to A's intention on the ground that the mistake was not, at the time of execution of the document, a mutual mistake.”

“I therefore conclude that unless actual knowledge of the mistake can be shown, dishonesty is on current authority a necessary requirement for a case of rectification for unilateral mistake. Whilst this dichotomy may appear anomalous, in practice (as Blackburne J indicated in paragraph [79] of his judgment in Wimpey ), a case where one party knows that the other is labouring under a mistake as to the contract terms, but does nothing to alert him, will usually be a case of dishonesty anyway.”

“F..k - bloody thing has gone negative again! What a bummer! Expect calls from Nicos”

“81. On 8 June 2020: a. Mr Jones sent me an email attaching a further draft of the TCP wording and asking me to provide and insert Clause 10. As noted above, this reflected the fact that Mr Jolliffe, Mr Jones and I were all aware that TML was to revert to Owners with a proposed new clause 10 for consideration. b. Mr Jolliffe sent me a further direct email asking me to send him the amended Clause 10 wording, noting that "it is THE clause" without which all others have little relevance". In my view, this reflected the fact that, notwithstanding that the parties had signed the HOA, Mr Jolliffe/Owners and I both understood that the precise wording of Clause 10 was still under consideration and would need further drafting and agreement. I knew Owners were very focused on the wording of Clause 10. 82. On 12 June 2020 Mr Jones sent an email attaching the current draft of the TCP wording and noting that Clauses 7, 10 and 19 required further work. 83. Following the weekend, on Monday 15 June 2020: a. I sent Mr Jolliffe a direct email noting that our Clause 10 proposed wording would follow. This was in response to an email Mr Jolliffe had sent to me expressing concern about Clause 10 and the fact that it was taking "such an inexplicable amount of time to draft" which he thought indicated "major changes". Whilst this accorded with my view that the parties were free to propose changes (even major ones), I had no intention to make any major changes to the fundamental agreement, and I replied that drafting Clause 10 was not a simple task. b. Later on 15 June 2020, I sent Mr Jones an email attaching a Word document setting out proposed wording for the Clause 10 hire rate calculation. That wording made clear that hire would be calculated in accordance with Sub-clause C) "JKM minus TTF". The express reference to "JKM minus TTF" (which was also the wording used in the original draft heads of terms on 10 February 2020) was simply for clarity. 84. To be clear, by using the wording "JKM minus TTF", I was not intending to change anything in terms of the parties' understanding or meaning of Clause 10 or deviate from Item 12 of the HOA. As noted above, my understanding of the "difference in the spread" wording and "JKM-TTF" table used in the HOA was that this already meant "JKM minus TTF"– and I knew Mr Jolliffe shared this understanding. However, as were now drafting the actual binding TCP wording, I wanted to make this crystal clear so that there could be no basis for future disagreement. 85. On 17 June 2020 Mr Jones emailed me stating that Owners had accepted my Clause 10 revised proposed wording. I understood that Owners had reviewed the language carefully because they proposed two amendments (which are not relevant for present purposes), and Mr Jones attached an amended TCP from Owners which incorporated the newly agreed Clause 10 wording including the express references to "JKM minus TTF". 86. Thereafter negotiations in respect of Owners' two proposed amendments to Clause 10 and other terms of the TCP continued for the second half of June/early July. 87. On 10 July 2020: a. Mr Jones sent me a further revised version of Clause 10 at 0933hrs in the morning. I printed the attachment, gave it a clean read and made some further changes to the wording b. I sent Mr Jones a further revised version of the TCP in which I made certain further additions to the Clause 10 wording, including additional wording to Clause 10 for a "Step 3" and “Step 4” in the calculations for the JKM-TTF Spread definition. 88. I expressly set out that "the TTF quote shall be deducted from the JKM publication creating a spread “daily spread”". Whilst I believed this was already obvious from the existing wording and all discussions to date, I added this wording so that someone doing the calculation would have all the relevant steps to calculate the hire in any given month, and so the parties were clear on how the clause would operate. This was consistent with all discussions throughout – that the "arb" was to be calculated by deducting TTF from JKM, i.e. JKM minus TTF. I understood that this calculation could result in negative or minus numbers if TTF was greater than JKM, and that for all such “negative spread” calculations the floor rate would apply, since all negative numbers were less than US$1.30 and the arb would be closed. I discussed the addition of the "Step 3" and “Step 4” wording with Mr Jones and he agreed they provided clarity on all the steps required to calculate TCP hire. 89. I did not at any point consider the possibility of such a calculation producing the “absolute value” of the difference between the indices, nor did Mr Jones or anyone on behalf of Owners ever communicate to me that Owners intended or understood that the hire adjustment mechanism should be based on a calculation of the “absolute value” of the difference between the indices, or that hire should increase when TTF exceeded JKM by more than the agreed trigger. If that had been communicated to me, I would have pointed out to Owners that I had a different understanding and intention. If I had intended and thought it was agreed that the rate of hire should also increase when TTF exceeded JKM by more than the agreed trigger, a different form of wording would have been needed to capture that. 90. I also added a "Step 4" explaining how the overall average was to be calculated and would be used for the "TTF JKM Spread in the Table of Hire Rates". The averaging of each of the daily spread figures to reach a "monthly average spread" would necessarily involve positive and negative daily spread figures netting off against each other. The reference to the “TTF JKM Spread” was a typographical error. The Table of Hire Rates itself refers to the "JKM-TTF Spread", not the "TTF JKM Spread". 91. Again, to be clear, by adding the "Step 3" wording referring expressly to TTF being deducted from JKM, I was not seeking to change anything in terms of the parties' understanding or meaning of Clause 10. As noted above, my understanding of the "difference in the spread" wording and "JKM-TTF" used in the HOA was that this referred to "JKM minus TTF" anyway and reflected the parties' discussions and agreement throughout. However, I wanted to make each step of the calculation crystal clear so that there could be no possible basis for future disagreement. I did not at any point intend to depart in any way from my understanding of the agreed hire adjustment mechanism described in item 12 of the HOA, which I understood to be entirely consistent with the detailed 4-step process in Clause 10 of the TCP. But in any event as noted above, whatever the wording of the HOA and the initial draft of clause 10 had been, Owners and I had always understood that the detailed final wording of Clause 10 would still need to be drafted and agreed, which is what we were now doing. 92. Later on 10 July 2020 Mr Jones sent me an Excel document titled "Clause 10 Rate Calculation". This table contained a "July 2020" tab with JKM and TTF data for July and a delta" (i.e. difference) column G which contained a mathematical formula of column C (JKM) minus column D (TTF). This JKM minus TTF calculation had been a constant feature of every spreadsheet since the very first one shared by Mr Jones on 10 December 2019. The Spreadsheet also contained a "Table" tab which contained in Excel form the same table of JKM-TTF Spread (i.e. JKM minus TTF Spread) as appeared in the draft version of Clause 10. 93. On 13 July 2020 Mr Jones sent me comments from Owners in respect of the latest version of the draft TCP. It was apparent that Owners had been through Clause 10 in fine detail. Mr Jones alerted me that Owners proposed clause 10 be adjusted so that the hire rate calculations would entail “… 4 decimals to daily spreads but final average to 2 decimal places then to be used in appendix J (table of hire rates) …”

“Dear Tristan, thanks for Chrtrs last and Owners are pleased to revert with their latest counter as attached. For clarity purposes we follow the same numbering as per your last below. Also please note that we have made some corrections on the tcp either typos/clarifications etc which believe that Chrtrs shall agree with in order to obtain a "clean" TCP. We would kindly request from your side that you check also and ensure that all insertions, ie compatibility/gas form B are correctly inserted and the Appendices are also numbered properly. Clause 6 and 51.19 — Owners accept Chrtrs last Clause 10 — Owners accept Chrtrs last Clause 19: checked the inserted wording - as per legal discussion and found in order except 2 corrections Clause 51.3 — Owners accept Chrtrs last Clause 51.6 — checked inserted wording - as per legal discussion and found in order Clause 52 — checked inserted wording — as per legal discussion and made 2 minor clarifications Please see appendix for PCG, wording - we did check and have made corrections on the part of Owners and Charterers PCG…”

“It is implicit in his realisation that there could be a future disagreement that Mr Murley either (a) appreciated that, based on the last version of the TCP prior to inclusion of Steps 3 and 4 (ie. that agreed by Owners early on 10 July 2020 {D/720} {D/721}), Owners intended the clause to operate where the TTF (materially) exceeded the JKM or (b) that he was reckless as to whether they operated under what was (ex hypothesi) such a mistake.”

“It is inequitable to allow Charterers to resist rectification to give effect to Owners’ intention in any event, but a fortiori because Mr Murley sought to obscure the changes he was introducing. He added them at the last minute. He left no paper trail by sending emails devoid of any text or explanation and instead seemingly conducted everything on the phone with Mr Jones that day. He also sought the input of another Fearnleys employee, Mr O’Sullivan, so that the introduction of Steps 3 and 4 would be less noticeable, and he referred to the “TTF-JKM Spread” in Step 4. All this was done to underplay the change to Step 3;…”