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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd & Anor [2012] EWCA Civ 265 (09 March 2012)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2012/265.html
Cite as: [2012] WLR(D) 70, [2012] 1 WLR 3674, [2012] 1 Lloyd's Rep 542, [2012] 1 CLC 497, [2012] 2 All ER (Comm) 978, [2012] 3 All ER 842, [2012] EWCA Civ 265
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, COMMERCIAL COURT
Mr Justice Christopher Clarke
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE TOMLINSON
and
SIR MARK WALLER
____________________
| Golden Ocean Group Limited |
Respondent |
|
| - and - |
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| Salgaocar Mining Industries PVT Ltd Mr Anil V Salgaocar |
Appellants |
____________________
Dominic Kendrick QC and Peter MacDonald-Eggers QC (instructed by MFB Solicitors) for Appellant (1)
Charles Kimmins QC and Luke Pearce (instructed by Bentley, Stokes & Lowless, Solicitors) for Appellant (2)
Hearing dates : 7, 8, and 9 November 2011
____________________
Crown Copyright ©
- The principal question which falls for decision in this case is whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial transactions for a contract of guarantee to be contained in a single document, and it is no doubt convenient that a guarantee should be evidenced in this way. The question however which arises in this appeal is whether it must. Christopher Clarke J, in the Commercial Court, held that it need not – [2011] EWHC 56 (Comm); [2011] 1 WLR 2575. He held that an enforceable contract of guarantee may indeed be found in a properly authenticated series of documents. His decision is said to have been unorthodox and contrary to the understanding of commercial men. It is said to have caused alarm.
- The Statute of Frauds 1677 ("the Statute") was "An Act for prevention of Frauds and Perjuries. For prevention of any fraudulent Practices which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury". Section 4 thereof prohibited the bringing of actions in respect of certain transactions "unless the agreement upon which such Action shall be brought or some Memorandum or Note thereof shall be in Writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised". Originally section 4 applied to five classes of transaction;
- History does not relate why these five classes of transaction were singled out for special treatment. The "very strong" Law Reform Committee, presided over by Jenkins LJ, reported to the Lord Chancellor in 1953 that the field had been "arbitrarily chosen". However that may be, section 4 of the Statute in its modern form survives only in respect of contracts of guarantee, although special and now different provision has been made for contracts for the sale or other dispositions of an interest in land – see section 40 of the Law of Property Act 1925 and section 2 of the Law of Property (Miscellaneous Provisions) Act 1989.
- Thus in its modern form section 4 of the Statute provides:-
- The Appellants are anxious to stress that section 4 of the Statute is no dusty relic. Its abolition, or so much thereof as by then survived[1], had been recommended in 1937 by the Law Revision Committee in its Sixth Interim Report, Statute of Frauds and the Doctrine of Consideration (Cmd 5549) paragraph 16. But on that earlier occasion a minority headed by Goddard J, who as Lord Goddard CJ was a member of the later Law Reform Committee, had favoured its retention. The reasons of the minority, as summarised in Actionstrength, at page 546, were:-
- Lord Hoffmann points out in Actionstrength at paragraph 20 of his speech:-
- The context in which the application of section 4 falls to be considered on this appeal is very familiar. It is the conclusion of a long term, ten year, time charter of a valuable vessel, a newbuilding Capesize bulker of 176,000 tonnes deadweight. The owners, Golden Ocean Group Ltd, hereinafter ("Golden Ocean") were negotiating for the hire of their vessel to a substantial conglomerate of industries, the Indian company Salgaocar Mining Industries Pvt Ltd, to which I shall refer hereafter as ("SMI"). SMI is based in Goa. Like many other similar conglomerates SMI has a chartering arm, here Trustworth Shipping Pte Limited, hereinafter ("Trustworth"), a Singaporean company. There may be issues at trial as to the status and purpose of Trustworth, but it is unlikely to be denied that since about the end of 2005 Trustworth has chartered many vessels and carried in them from India to, mainly, China, cargoes which SMI had sold. The use of Trustworth may well be driven by tax reasons and related to the restrictions on transfer abroad of foreign currency imposed by Indian Exchange Control Regulations. If, as the judge thought likely, the use of Trustworth was intended to distance the charter from India, there would be nothing either unusual or disreputable about that. It is entirely commonplace. So however is the quid pro quo, that an owner asked to deal with such a charterer would often and perhaps ordinarily be unprepared to do so save on terms that its obligations are fully guaranteed by its parent or some other company of substance. The transaction here followed that familiar pattern.
- The procedural context in which the question arises is an application by the Defendants, now Appellants, SMI and Mr Anil V Salgaocar, to set aside an Order made on 11 March 2010 giving to Golden Ocean permission to issue a Claim Form for service and to serve it on the Defendants in Goa. The application came before Christopher Clarke J who, coincidentally, had made the Order on the ex parte application.
- I can do no better than to adopt, gratefully, the judge's summary of the dispute and the background:-
- The judge then turned to the history of the negotiations and again I can do no better than to adopt the judge's succinct summary:-
- The judge dealt briefly with subsequent events which are of interest but of no direct relevance to the resolution of the issues which arise on this appeal. I include the judge's account for completeness:-
- On 30 December 2009 Golden Ocean commenced arbitration proceedings against Trustworth in reliance on the arbitration clause in the putative charterparty. Trustworth appointed an arbitrator without prejudice to its contention that there was no concluded contract between Golden Ocean and itself. Golden Ocean applied under section 32 of the Arbitration Act 1996 for a determination of the tribunal's jurisdiction. On 28 July 2011, after a three-day hearing at which the judge heard oral evidence from Mr Hindley, Mr Kerr-Dineen and Mr Salgaocar, Beatson J determined that there was a concluded charterparty between the parties, which was subject to a concluded purchase option and that the parties had agreed the MOA as to that option. There was therefore a binding agreement to arbitrate. It is of interest to note that in those proceedings it was, until shortly before the hearing, Trustworth's case that Mr Salgaocar lacked authority to conclude the charterparty. At the hearing however, Trustworth's case was that Mr Salgaocar expressly terminated Mr Hindley's authority when he called off the negotiations on 6 February.
- The present action was begun on 5 March 2010 leading promptly to the permission to serve out given on 11 March 2010. Permission to serve out was sought and given on the basis that:-
- It was not in dispute before either the judge or this court that there is for the purposes of establishing jurisdiction a sufficiently arguable case that:-
- Furthermore, at the hearing before us I understood Mr Dominic Kendrick QC, for SMI, to accept for the purposes of the jurisdiction application that it is sufficiently arguable that, by the exchange of messages on 21 February 2008 there was concluded not just a charterparty between Golden Ocean and Trustworth but also, if one is looking at the matter simply as an exercise in contract formation, a contract of guarantee between Golden Ocean and SMI. It must be remembered that, as pointed out by the Law Reform Committee in 1953, a contract of guarantee which is not embodied in or evidenced by a document signed by the guarantor or his authorised agent is not void, but simply unenforceable. Mr Kendrick does not however accept that such a contract of guarantee as was arguably concluded is enforceable. As I understood his argument there are six reasons why it is not enforceable, although they perhaps overlap:-
- Point 6 above did not feature in SMI's grounds of appeal and it is not a point dealt with by the judge. Mr Kendrick acknowledged "with reluctance" that it was not a proposition to which this court could accede, although it would, he submitted, arise later. I shall have to revert to this point. There are as it seems to me wrapped up within it two separate points. One is the question whether a chartering broker may have authority to sign a document such as B106 in a manner which authenticates a contract of guarantee, which is I think bound up with the question whether objectively the parties intended to be bound to or by a guarantee only in the event that a later formal document was drawn up in the shape of a charterparty or perhaps a separate letter of guarantee. The other question is whether Mr Hindley was given express authority to sign a guarantee. Obviously the latter is a question which, if relevant, must await trial.
- The judge decided that it was "well arguable" that the final agreement of the parties contained in the sequence of emails was, qua the guarantee, an agreement in writing for the purposes of the Statute. It is as I understood it that point which all parties were happy we should finally decide. The argument ranged far and wide but at the end of the day it was I think Mr Kendrick's submission that the first limb of the Statute could be satisfied only by a written contract which is in turn a contractual instrument which the parties agree or intend is to contain the whole of their contract of guarantee. This, he said, is what the ordinary person would think a written agreement is. In so submitting he was echoing the language of the Law Commission at paragraph 5 of its Report No.164 (1987) on Formalities for Contracts for Sale etc of Land. At bottom therefore Mr Kendrick submitted that what was needed was a single document or perhaps an exchange of two identical documents. I agree that we can and should decide this important point of principle, although we cannot in my view do so without dealing also with the requirement of signature. As I shall demonstrate the two are related.
- I begin by observing that the recommendations contained in the Law Commission Report to which I have just referred led to the enactment of the Law of Property (Miscellaneous Provisions) Act 1989. Section 2 thereof provides, so far as material:-
- However, as I understood Mr Kendrick's argument, he was prepared to accept that the single signed document required to satisfy the Statute, whether it be the agreement itself or a note or memorandum thereof, could set out its terms by reference to other documents provided that there is in the signed document express or necessary reference to another document or documents. That was not so in the present case, he submitted, because the final email at B106, assuming it to be signed, made no reference to a guarantee at all and made no express or necessary reference to any other then existing document. What it did refer to, by contrast, was a formal charterparty which all parties envisaged would in due course be drawn up and which would contain the guarantee, unless of course that was dealt with by separate letter, in which case similar considerations arise.
- It is important to be clear at the outset that it was the judge's conclusion that the agreement in writing was here to be found in a sequence of emails culminating in that at B106, not in the email or emails set out in B106 itself. It is not suggested that the email at B106 qualifies as a memorandum or note of an agreement such as satisfies the Statute. Mr Timothy Young QC for Golden Ocean did have a case to the effect that the email sent on 4 February 2008 by Mr Hindley to Mr Hintz could be so regarded, although he has no need of it if the judge's conclusion is correct. It is however convenient to refer to that email at this stage. It was sent by Mr Hindley to Mr Hintz after sending the email to Mr Salgaocar to which the judge referred at paragraph 17 of his judgment, set out above. So far as I can ascertain, it was this message which Mr Hintz then passed on to Mr Flaaten, again as recorded by the judge at paragraph 17 of his judgment. It was as the judge said a recap including the agreed charterparty terms. The essential features of the contract, including the vessel's description and specification, the duration of the charter and the rate of hire and the terms of the purchase option were all set out, including this:-
- The Statute contains no express indication that the agreement in writing required to satisfy its terms must be in one or even a limited number of documents. It is no doubt true that in 1677 a signed written agreement would often and perhaps always be contained in a single document, but Mr Kendrick very sensibly did not suggest that that provides a pointer to how the Statute should today be construed. However his argument did, as it seems to me, in all its elegant iterations, always come back to the point that an instrument of that sort would accord with most people's understanding of what is meant by a contract in writing. That of course may be so, but we are immediately concerned with the understanding of professionals in the shipping market. Moreover the purpose of the requirement that the agreement must be both in writing and signed by the guarantor is not so much to ensure that the documentation is economical but rather to ensure that a person is not held liable as guarantor on the basis of an oral utterance which is ill-considered, ambiguous or even completely fictitious – see per Lord Hoffmann in Actionstrength at page 549 E. A combination of writing and an acknowledgement by signature of the solemnity of the undertaking has been chosen to eliminate that mischief. I see nothing in either the mischief sought to be eliminated or the means adopted to achieve that end which requires a limitation upon the number of documents in which the writing is to be found. At paragraph 5 above I set out Lord Bingham's summary of the reasons which in 1937 informed the recommendation of the minority of the Law Revision Committee led by Goddard J to retain the requirements of section 4 of the Statute for guarantees. Again, I see nothing in those reasons which militates in favour of a limitation upon the extent of the documentation in which an enforceable guarantee may be found, save perhaps on grounds of convenience.
- The conclusion of commercial contracts, particularly charterparties, by an exchange of emails, once telexes or faxes, in which the terms agreed early on are not repeated verbatim later in the exchanges, is entirely commonplace. It causes no difficulty whatever in the parties knowing at exactly what point they have undertaken a binding obligation and upon what terms. As Mr Young pointed out, it is often a matter of happenstance, or, metaphorically, the pressing of a button, whether a sequence of emails manifests itself in a single document as a thread or string of emails or in a series of individual documents. We were much pressed by Mr Kendrick with the prospect, which he invited us to regard as inimical to the purpose of the Statute, of it being satisfied by an educated trawl through a lever arch file of email exchanges. This was always a forensic exaggeration, but on the facts of this case the spectre invoked by Mr Kendrick is simply absent. All of the terms of the charterparty, and of the guarantee, are to be found in the email dated 2 February 2008 but in fact sent by Mr Hindley to Mr Hintz on 4 February 2008. That was subject only to agreeing mutually acceptable terms on the MOA. The relevant email thread of 21 February 2008, B106-108, occupies two and a half pages of A4 paper. In it is to be found clear agreement on the terms of the MOA and, additionally, agreement that one of the provisions agreed in that context, the "Additional Clause", should in point of form be put rather into the charterparty where it more appropriately belonged than in the MOA. If I have correctly understood the nature of the email string or thread at B106-108, the exercise of ascertaining that a guarantee has been agreed in writing and discovering its terms involves reference to only two documents, the document at B106-108 and the email of 2 February 2008 sent on 4 February 2008. I can see no reason why the contract of guarantee so identified should not be regarded as an agreement in writing for the purposes of the Statute. For the avoidance of doubt however my conclusion is not dependent upon the circumstance that, as it happens, it is here necessary to look at only two documents. Subject to the requirement of signature to which I shall return, I can see no objection in principle to reference to a sequence of negotiating emails or other documents of the sort which is commonplace in ship chartering and ship sale and purchase. Whether the pattern of contract negotiation and formation habitually adopted in other areas of commercial life presents difficulty in adoption of the same approach must await examination when the problem arises. Nothing I have said is intended to discourage the obviously sensible practice of incorporating a guarantee either in a readily identifiable self-standing document or otherwise providing for it as part of the terms of a formally executed document. The Statute must however, if possible, be construed in a manner which accommodates accepted contemporary business practice. The present case is not concerned with prescribing best or prudent practice. It is concerned with ensuring, so far as is possible, that the adoption of usual and accepted practice cannot be used as a vehicle for injustice by permitting parties to break promises which are supported by consideration and upon which reliance has been placed.
- Noting that I must yet deal with Mr Kendrick's other objections as to the inadequacy of the emails which I have identified to stand as satisfaction of the Statute, I must next deal with the authorities cited to us. In my judgment none of those authorities prevents our reaching the conclusion which I have already outlined above.
- Mr Kendrick took us first to Tiverton Estates Limited v Wearwell Ltd [1975] 1 Ch 146 which in turn overruled Law v Jones [1974] 1 Ch 112. Both are cases concerned with the sufficiency of a note or memorandum for the purposes of section 40 of the Law of Property Act 1925. The later case is authority for the proposition that a memorandum or note must, if it is to be effective, not only state the terms of the contract but also contain an acknowledgement or recognition by the signatory to the document that a contract had been entered into. The defendants lost because the alleged memorandum was expressly "subject to contract" and therefore did not satisfy section 40 because it did not recognise or admit the existence of a contract. There is much learning in the judgment of Stamp LJ in Wearwell explaining an anomalous line of cases where the memorandum relied upon apparently pre-dates the making of the contract and so cannot in strict theory be said to acknowledge the existence of a contract since when written there was none. Reuss v Picksley (1806) LR 1 Exch 342 was such a case of a written proposal accepted orally. The reconciliation of these cases with the requirements of the section was "to be found in the theory that the written offer envisages a contract, proposes a contract, continues unless it is in the meantime withdrawn, until accepted and takes effect simultaneously with the formation of the contract". See per Stamp LJ at page 166/167. There is in my judgment nothing in this line of authority which bears upon the question what satisfies the Statute as an agreement in writing as opposed to the quest for a sufficient note or memorandum. It has been said that the use of a written offer as a note or memorandum of the contract entered into upon its oral acceptance "pushed the literal construction of the Statue of Frauds to a limit beyond which it would perhaps be not easy to go" – see per Bowen LJ in In Re New Eberhardt Company, Ex parte Menzies (1890) 43 Ch.D. 118 at 129. That however is because, as Stamp LJ pointed out in Tiverton v Wearwell at page 167, the necessary quality of the note or memorandum is that it should recognise the contract. Such considerations are of no relevance when what is relied on is the contract itself rather than a note or memorandum thereof. I would only add that Mr Kendrick tended to approach the two limbs of section 4 of the Statute as if it ought necessarily to be more difficult to satisfy the first than the second. I can see no warrant for this approach. The two limbs are simply different. I cannot see why it should be assumed that the formalities prescribed by the first limb will be more difficult to achieve than those required by the second. If anything, the authorities demonstrate that the second limb is in fact attended by more formality. The note or memorandum must not pre-date the transaction. If the memorandum or note does not contain all the terms of the guarantee it must contain some reference, express or implied, to some other document or transaction. This is potentially more problematic than examination of a sequence of contractual negotiations which, by definition, are likely of necessity to contain linking references. Timmins v Moreland Street Property Co Ltd [1958] 1 Ch 110 explores the difficulties but is again, in my judgment, of no immediate relevance to the question under discussion. For the same reason nor is Elias v George Sahely & Co (Barbados) Ltd [1983] AC 646 where the decision of the Court of Appeal in Timmins was approved by the Judicial Committee of the Privy Council.
- Finally on this part of the case Mr Kendrick referred us to The Anemone [1987] 1 Ll Rep 546 which also concerned a guarantee of the charterers' obligations under a charterparty. This was again a case concerned with identifying a qualifying note or memorandum, but Mr Kendrick suggests that its significance lies in the circumstance that, as he contends, if the conclusion of the judge in the present case is correct, then the Anemone could have been decided on the much more straightforward basis that there existed a written contract of guarantee when the charterparty was entered into. However I do not think that Mr Kendrick is correct. The facts are somewhat complex. Owners wished to let their vessel on time charter to Afram Line Limited but were unwilling to do so without a guarantee. The negotiations were conducted by Centre Shipping on behalf of owners and Dipgrove Holdings on behalf of charterers. It was agreed at an early stage of the negotiations that there would be a guarantee. Main terms but not the details were agreed by noon on 23 December 1983. The terms of a proposed guarantee were sent by telex to Shirlstar, the proposed guarantor, by Centre, soon after 12 noon on 23 December. Later in the afternoon in the course of a telephone conversation Mr Bott of Dipgrove confirmed to Mr Sorensen of Centre that Shirlstar was willing to give a guarantee in the terms proposed. The effect of the conversation was, Staughton J held, that Mr Bott on behalf of Shirlstar offered to guarantee the obligations of charterers if the owners entered into a charterparty with the main terms that had by then been agreed by Mr Bott and Mr Sorensen. That offer was one which could be accepted by the conclusion of such a charterparty. Before that happened, it might of course have been revoked. Thereafter negotiations continued on the details, with agreement being reached shortly after midnight on 23/24 December. A recap was sent by the owners to Centre and by them to Dipgrove, setting out all that had been agreed. It included this term:
- Staughton J dealt first with a series of arguments to the effect that no binding contract was concluded between owners and Shirlstar. I need only reproduce his reasoning in relation to the last of those arguments, which is relevant to a further part of Mr Kendrick's argument to which I must revert. Staughton J said this, at page 551:-
- It was recognised however that the question remained whether that contract was enforceable "despite the Statute of Frauds". No-one appears to have suggested that either the recap or the formal charterparty when drawn up could be relied upon as itself constituting a written contract of guarantee for the purpose of the Statute. There are I think at least two reasons why that is so. The first, as pointed out by Rix LJ in the course of the argument, is that it was stated in terms in those two documents that the guarantee was to be contained in a separate letter to be issued by Shirlstar and signed on its behalf by its Chairman, Sir Benjamin Slade. It could not therefore sensibly be said that the guarantee was contained in either the recap or the charterparty. Secondly, as pointed out by Sir Mark Waller in the course of the argument, in order to demonstrate that Shirlstar had in fact agreed to execute such a guarantee, reliance needed to be placed on Shirlstar's oral offer so to do. The case therefore resolved into a search for an adequate note or memorandum of the agreement. The judge found such a note or memorandum in a combination of documents: (1) the telex of 23 December from Centre to Shirlstar setting out the wording of the guarantee required by the owners, (2) a telex of 6 January 1984 from Dipgrove to Shirlstar quoting a message of the owners to the effect that in the light of charterers' failure to pay the first instalment of hire and for bunkers on delivery they looked to Shirlstar to honour its obligation under the letter of guarantee and (3) a telex from Shirlstar to the owners' agents also dated 6 January 1984, which contained, the judge held, an implied recognition that it had contracted to guarantee the obligations of Afram Line under the charterparty of the Anemone. The judge concluded, at page 556:-
- Mr Kendrick acknowledged that in no case has it been decided that section 4 imports by implication the "one instrument, one document" rule which is to be found in section 2(1) of the Law of Property Miscellaneous Provision Act 1989. By the same token, Mr Kendrick pointed out that in no case before this had it been suggested that a contract in writing could be found for the purposes of the Statute in more than one document, and he urged that the same approach should be adopted as in section 2(1) since that accords with what the Law Commission considered was widely understood as naturally meant by "a contract in writing". Before the judge, although not I think before us, Mr Kendrick seems to have submitted that the court is restricted to looking at a "very confined number of documents". As The Anemone shows, one can look at more than one document to find a note or memorandum and it is difficult to see why the position should be different where an agreement is concerned, particularly having regard to the manner in which commercial contracts are habitually reached in modern conditions. Mr Kendrick also reminded us that our conclusion must take into account the breadth of the field in which guarantees are habitually given, often for example in a family or domestic context to support bank lending or a lease to a family member. There is, he suggested, much to be said for keeping the law simple. I agree with this sentiment, but I do not consider that the judge's decision in this case opens up a real possibility of consumers inadvertently binding themselves to contracts of guarantee. It is in the interests of those who deal with consumers to keep the documentation clear and simple, otherwise they may find that the cost and complexity of attempted enforcement outweighs the potential benefit.
- The judge expressed his conclusion on this point in this way:-
- That deals with the first three of Mr Kendrick's arguments which I summarised at paragraph 14 above. I turn to the fourth point. On this point the passage which I have set out above from the judgment of Staughton J in The Anemone is, I think, of assistance. I agree that the document at B106 evidences the contemplation of the parties that the guarantee would be incorporated in a formal written document, here a charterparty. But the guarantee was an integral part of the charterparty and was contained within its terms as summarised in the recap. It is not sensible to contemplate that the charterparty should become binding on the parties thereto in the absence of a guarantee enforceable by the owners against the guarantor. No-one would suggest that the charterparty did not here become binding when the details of the MOA were finally agreed. The situation is in my view distinguishable from the well-understood position which obtains when negotiations are made subject to contract. There the shared intention is clear that neither party is to be bound until the execution of a formal document. Here the position is very different. We are concerned not with the intention to be bound but with the formalities required for enforceability, a distinction to which I have already drawn attention. We are concerned not with one contract but with two, a charterparty and its ancillary guarantee. To hold that the owners and charterers were not bound until the execution of a formal charterparty would frustrate their expectations. The proposed guarantor could if it so wished stipulate that it was not to be bound until execution of a formal document, whether charterparty or separate letter, but it did not do so here. Had it done so the owners would have had the opportunity of stipulating that they too were not to be bound until execution of a formal document, either incorporating the guarantee or concluded only after its separate issue. The parties' intentions are to be objectively spelled out of their communications. In my judgment the circumstance that the email at B106 envisaged that a formal charterparty would be drawn up, which would in accordance with the recap appropriately record that the charterers were fully guaranteed by SMI, does not indicate an intention on the part of any party not to be bound until issue of that document. The question whether the guarantee may be enforced is, as it seems to me, a separate question, distinct from the guarantor's intention. It is again the distinction between identifying an obligation which is binding, not void, and the separate question whether the agreement so identified is recorded with sufficient formality to be enforceable. The latter is simply a question of objective fact which, as the learning on signature to which I next turn demonstrates, is independent of intention. It is sufficient to conclude, as I do, that neither the formality required by the Statute nor the expectation that there would be drawn up, in the ordinary course, a further and formal document, nor yet the combination of the two, demonstrates an intention not to be bound until such document is issued.
- The document which confirms the conclusion of the contract of guarantee is the final email at B106. It contains the name Guy, indicating that it was sent by Mr Hindley. Mr Kendrick has three or possibly four distinct points in relation to the argument that this constitutes signature by or on behalf of the guarantor. First, he says that this is not a signature at all. It is, he says, no more than a salutation, and moreover one delivered in a "matey" or familiar fashion. Secondly, if it is a signature, it is only the signature of a communication. It is not a signature appropriate or effective to authenticate a contract of guarantee. Thirdly, he says that the email is not itself a contract of guarantee but simply an email by which a contract of guarantee is concluded by operation of law. What is required is signature on the agreement to guarantee. Fourthly, Mr Hindley is a chartering broker. By this email he is concluding the charterparty contract and therefore as a matter of law also concluding the contract of guarantee. That indicates only, on the assumed facts, that he has authority to make a charterparty contract which triggers the making of a contract of guarantee. That is not enough. It must further be shown that he was the authorised agent of the guarantor to sign the agreement of guarantee, as distinct from having the authority to conclude the contract of guarantee. I note that this last submission recognises the distinction upon which I have relied in dealing with Mr Kendrick's fourth main point.
- It was common ground both before the judge and before us that an electronic signature is sufficient and that a first name, initials, or perhaps a nickname will suffice. Mr Kendrick's point was that the affixing of Mr Hindley's name was not done in a manner which indicated that it was intended to authenticate the document, that being the touchstone – Caton v Caton (1967) LR 2 E & Ir Appeals 127, a decision of the House of Lords. See also the discussion in Andrews and Millett, Law of Guarantees, 5th Edition at paragraph 3-024, where the cases and the principles emerging therefrom are helpfully collected together and analysed. I do not accept Mr Kendrick's first argument. Chartering brokers may communicate with one another in a familiar manner but that does not detract from the seriousness of the business they are conducting. In my judgment Mr Hindley put his name, Guy, on the email so as to indicate that it came with his authority and that he took responsibility for the contents. It is an assent to its terms. I have no doubt that that is a sufficient authentication.
- For much the same reason I reject the second point too. Professional brokers understand that their communications give rise to obligations binding their principals. This was not simply an inconsequential communication. It was a communication which the brokers will readily have appreciated brought into being both the charterparty and the guarantee. Even if I am wrong that they would have appreciated that it brought into being a guarantee, their appreciation that it would bring into being a charterparty is sufficient to indicate that the signature plays an important role in authenticating a contract.
- Naturally I accept that the email at B106 is not itself the contract of guarantee. I have no doubt however that the signature on that document of Mr Hindley, assuming his authority, is properly regarded as authentication of the contract of guarantee contained in it and the other document or documents in the sequence to which I have already referred.
- That leaves only Mr Kendrick's fourth point, which was not raised in the grounds of appeal. Mr Kendrick suggested that this point could not be decided now. I agree that the point cannot be disposed of now since the extent of Mr Hindley's authority, whether as a chartering broker or as an agent authorised to conclude a contract of guarantee, remains to be established at trial. It is sufficient for present purposes that the owners have, as in my view they do, a good arguable case on the already assumed facts that Mr Hindley had the authority of SMI to sign the email at B106. As I shall shortly demonstrate, authority in those terms would be sufficient for the purposes of the Statute to constitute the signature SMI's signature on a contract of guarantee. It might also be arguable that authority to conclude a contract of guarantee would necessarily bring with it authority to authenticate a written record of that contract in such a manner as to render it enforceable, although I doubt if owners need to go so far. Such authority might have been expressly withheld, but that, together with the question of its relevance if proved, remains for trial.
- I would however add that if it is established that Mr Hindley had authority to conclude a contract of guarantee, I can see little practical scope for the success of an argument that his signature on B106 was ineffective for the purposes of the Statute. In Daniels v Trefusis [1914] 1 Ch 788 solicitors were authorised by their client to send replies to certain questions. The signed letter in which they sent those replies was considered by Sargant J to comprise, together with other documents, a sufficient note or memorandum of the client's agreement to purchase certain land. The solicitors had not been authorised to bind their client to a contract and indeed the contract had been made prior to the sending of the relevant letter. Nor were the solicitors authorised in terms to sign a note or memorandum of the agreement which had already been made. Sargant J dealt with the argument that the authority of the solicitors did not extend to the signing of a note or memorandum of the contract on behalf of their client in this way:-
- In Elpis Maritime Co Ltd v Marti Chartering Co Inc [1992] 1 AC 21 negotiations for a charterparty were conducted by telephone and telex between owners' brokers and charterers' brokers, Marti. In the course of the oral negotiations Marti agreed to guarantee charterers' liability to pay demurrage and freight. A written charterparty was drawn up. Clause 24 on the third page thereof provided that demurrage was to be guaranteed and payable directly by charterers to owners but that Marti "guarantees about outstanding demurrage, if any, and for balance freight". The front page of the charterparty was stamped and signed for the owners as principals but was stamped and signed by Marti with the words: "For and on behalf of charterers as brokers only". All succeeding pages except the last were signed or initialled for the owners and bore a stamp and signature for Marti without any indication that they were signing as the charterers' brokers. The last page bore at the end a stamp and signature for owners below the word "owners" and a stamp and signature for Marti below the word "charterers". Marti admitted the conclusion of a contract of guarantee but maintained that it was unenforceable by reason of section 4 of the Statute. The House of Lords disagreed. Lord Brandon dealt with the matter in this way at pages 31-33:-
- In the light of those authorities, it seems to me clear that authority from SMI to send an authenticated email containing the information set out in the final email at B106 will be sufficient to satisfy the Statute, irrespective of the intention with which Mr Hindley put his name on that document and without the need for any further enquiry as to the capacity in which he did so.
- That is sufficient to dispose of this appeal.
- Subject to any appeal from the decision of Beatson J, there may remain as against Mr Salgaocar personally only the claim for breach of warranty authority in respect of SMI. As to that however it was accepted that if this court is to remain seised of the action between Golden Ocean and SMI, as if my brethren agree with my judgment it is, Mr Salgaocar is a necessary or proper party to that claim because the sensible course is to bring the alternative claims in the same proceedings so as to avoid the risk of inconsistent findings and waste of costs. It does not matter for this purpose whether English law or Indian law governs the claim for breach of warranty of authority. In these circumstances it is, as the judge recorded at paragraph 131 of his judgment, unnecessary to decide which side has much the better of the argument in relation to the proper law of the claim against Mr Salgaocar for breach of warranty of authority as regards SMI. However since this point is of some general interest and importance and was fully argued before us I propose to express my view upon it.
- The judge dealt with this point by reference both to the authority which Mr Salgaocar allegedly warranted that he had on behalf of Trustworth and the authority which he allegedly warranted that he had on behalf of SMI and I shall do the same. There is in my judgment for present purposes no distinction to be drawn between them.
- The charterparty is expressly subject to English law.
- The guarantee is contained within the charterparty.
- The Rome Convention scheduled to the Contracts (Applicable Law) Act 1990 provides as follows:-
- Like the judge, and as was I think common ground before us, I consider that the proper law of the guarantee is English law. That is achieved by application of Article 3. The parties' choice of English law is demonstrated with reasonable certainty by their effecting the guarantee by including within the charterparty the words "Trustworth . . . fully guaranteed by [SMI]". It would, as the judge observed, be incongruous if some law other than that which governs the charterparty were to be regarded as applicable to the guarantee. In rather similar circumstances Hamblen J decided in Stellar Shipping Co v Hudson Shipping Lines [2010] EWHC 2985 (Comm) that a guarantor was also bound by the arbitration clause in the charterparty. That was, if anything, a less obvious case than is the present in which to reach that conclusion since the guarantor, Stellar, by the terms of the contract of affreightment undertook to provide a (separate) letter of guarantee. The judge, in reliance upon the now well-known observations of Lord Hoffmann in Fiona Trust v Privalov [2008] 1 Ll Rep 254 at paragraph 13, concluded that given the close connection between the contract of affreightment and the guarantee, and between the parties involved, one would expect them as rational businessmen to agree a common method of dispute resolution. That reasoning applies a fortiori here where it was not envisaged that the guarantee would be contained in a separate instrument. The arbitration clause called for arbitration in London. That is an additional reason for thinking that the parties here demonstrated with reasonable certainty their choice of English law as the law governing the guarantee.
- What then of the law governing the claims for breach of warranty of authority? The claim is brought on a unilateral contract. The agent offers to warrant his authority from his principal in exchange for the third party entering into a contract with his principal – see Bowstead & Reynolds on Agency, 19th Edition, paragraph 9-062. It is normally an implied contract which arises where a person, who I will for simplicity call the agent, by words or conduct represents that he has actual authority to act on behalf of another and a third party is induced by such representation to act in a manner in which he would not have acted if that representation had not been made. In such circumstances the agent is deemed to warrant that the representation is true and is liable for any loss caused to the third party by a breach of that implied warranty. See again Bowstead & Reynolds at paragraph 9-060.
- At paragraph 12.026 the learned editors say this, in the context of a discussion of the applicability to such contracts of the Rome Convention:-
- The residual provisions of Articles 4.3 and 4.4 are of no relevance here. It seems to me that any conclusion that an implied contract of this sort is not governed by the same law as the proposed or putative contract to which it is ancillary is simply not sensible. The representation is made in the context of a negotiation with a view to bringing about the principal contract, and it seems only natural that the contractual relationship brought about by reliance thereon should be governed by the same law as chosen to determine whether that reliance has brought into existence a valid principal contract and, if so, to determine the nature and extent of the obligations arising thereunder.
- I do not think that the observations at paragraph 12-026 of Bowstead & Reynolds were drawn to the judge's attention. Neither before the judge nor before us was it suggested that Article 3 was engaged. Mr Charles Kimmins QC for Mr Salgaocar suggested that Article 3 is limited to cases where the parties had a clear intention of making a choice. The contract under discussion is a deemed contract which the parties may not have realised that they had made. In such circumstances, submitted Mr Kimmins, it is clear that Article 3 is not engaged. In this regard he relied upon a passage in the Giuliano-Lagarde Report at paragraph 3 of the commentary on Article 3, which reads:-
- The judge's reasoning was as follows:-
- At paragraph 136 the judge seems, with respect, to have lost sight of the claim for breach of warranty of authority in respect of Trustworth, but no doubt his reasoning applies mutatis mutandis and since (a) that claim may no longer be live and (b) this discussion is in any event unnecessary for our decision, I need say little more about it.
- I agree with the judge that it is a curious use of language to describe "having the authority warranted" as the performance characteristic of the unilateral contract to which a warranty of authority gives rise when relied upon by the representee. For my part I do not think that a characteristic performance can readily be identified. I am not dissuaded from this view by the observation at page 480 of the Giuliano-Lagarde Report that:-
- In those circumstances the application of the second limb of Article 4.5 does not arise. However if I am otherwise wrong and it does arise I would again have little difficulty in concluding that the presumption in paragraph 2 of Article 4 should be disregarded. Mr Kimmins reminded us that Professors Giuliano and Lagarde have described the concept of closest connection as "in itself, too vague" – see at page 480 of their Report. That notwithstanding, Article 4.5 calls for a weighing and evaluation process as recognised by the European Court of Justice in its decision in Intercontainer Interfrigo SC (ICF) v Balkenende Oosthuizen BV [2010] QB 3411. One of the questions posed by the national court raised the issue whether the second limb of Article 4.5 is engaged only when the presumptive connecting criteria are in effect lacking in reality, or whether it permits a weighing of their strength together with that of other circumstances pointing to a connection with another country. In its judgment the court said this:-
- For the reasons I have endeavoured to give, the contract pursuant to which Mr Salgaocar warranted his authority on behalf of SMI was here in my judgment more closely connected with England than with any other jurisdiction. I would only add that the selection of English law as the law governing the claim for breach of warranty of authority in relation to SMI is also in my judgment conducive to the general requirement of legal certainty in contractual relationships of which the ECJ speaks in paragraph 63 of its judgment set out above. I would therefore if it were necessary allow the permission to serve Mr Salgaocar out of the jurisdiction to stand on the basis that any contract whereby on this occasion he warranted his authority on behalf of SMI was governed by English law.
- I noted at paragraph 48 above that it is unnecessary to deal in any further detail with the additional claim that Mr Salgaocar is similarly in breach of warranty of authority so far as concerns Trustworth, should that claim arise. The judge made no finding as to the law governing that relationship. Trustworth is a Singaporean company and was I shall assume used to distance the charterparty from India. It would be an ironic result if a claim for breach of warranty of authority in relation to Trustworth fell to be determined in accordance with Indian law because of the habitual residence there of Mr Salgaocar. It would equally be a strangely unsatisfactory outcome if the circumstance that Trustworth is a Singaporean company and SMI an Indian company led to the result that the law governing the warranties of authority given simultaneously by Mr Salgaocar on behalf of Trustworth and SMI was in the first case Singaporean and in the second case Indian. Considerations such as these reinforce my belief that the question by what law is a contract of warranty of authority governed needs to be approached in the manner I have suggested. I believe that that approach accords with the parties' implied choice and that it moreover satisfies the requirement of foreseeability of the law and thus of legal certainty in contractual relationships.
- I would dismiss the appeal.
- I agree.
- I also agree.
Lord Justice Tomlinson :
Introduction
i) An agreement by an executor or administrator to pay damages out of his own estate;ii) A contract of guarantee;
iii) An agreement made upon consideration of marriage;
iv) A contract for the sale or other disposition of an interest in land; and
v) A contract that is not to be performed within the space of one year from the making thereof.
The purpose of the Statute was, according to Lord Hoffmann, Actionstrength Ltd v International Glass Engineering SPA [2003] 2 AC 541 at 549 ". . . precisely to avoid the need to decide which side was telling the truth about whether or not an oral promise had been made and exactly what had been promised." Parliament must have decided, thought Lord Hoffmann, that there had been "too many cases in which the wrong side had been believed." Lord Hoffmann also points out, in the same passage, that:-"It is quite true . . . that the system of civil procedure in 1677 was not very well adapted to discovering the truth. For one thing, the parties to the action were not competent witnesses. But the question of whether the Act should be preserved in its application to guarantees was considered in 1953 by the Law Reform Committee (First Report, Statute of Frauds and Section 4 of the Sale of Goods Act 1893 (Cmd 8809)) and the recommendation of a very strong committee was to keep it."Lord Bingham in his speech in Actionstrength said that section 4 was enacted "to address a mischief facilitated, it seems, by the procedural deficiencies of the day . . . the calling of perjured evidence to prove spurious agreements said to have been made orally. The solution applied to the five classes of contract specified in section 4 was to require, as a condition of enforceability, some written memorandum or note of the agreement signed by the party to be charged under the agreement or his authorised agent" – see at 544-545.
"No action shall be brought whereby to charge the Defendant upon any special promise to answer for the debt default or miscarriage of another person unless the Agreement upon which such Action shall be brought or some Memorandum or Note thereof shall be in Writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorised."
"(1) that there was a real danger of inexperienced people being led into undertaking obligations which they did not fully understand, and that opportunities would be given to the unscrupulous to assert that credit was given on the faith of a guarantee which the alleged surety had had no intention of giving;
(2) that a guarantee was a special class of contract, being generally one-sided and disinterested as far as the surety was concerned, and the necessity of writing would give the proposed surety an opportunity for thought;
(3) that the requirement of writing would ensure that the terms of the guarantee were settled and recorded;
(4) that Parliament had imposed a requirement of writing in other contractual contexts;
(5) that judges and juries were not infallible on questions of fact, and in the vast majority of cases the surety was getting nothing out of the bargain;
(6) that it was desirable to protect the small man; and
(7) that the necessity for guarantees to be in writing was generally understood."
The Law Reform Committee agreed in 1953 that writing should continue to be required for contracts of guarantee. It recommended repeal of the section so far as concerned its application to the other three remaining classes of contract and the recommendation was adopted by enactment of the Law Reform (Enforcement of Contracts) Act 1954. Section 40 of the Law of Property Act 1925 has now been superseded by section 2 of the Law of Property (Miscellaneous Provisions) Act 1989 which requires that contracts for the sale or other disposition of an interest in land must be made in writing. A memorandum or note of an agreement is no longer sufficient.
"The terms of the statute therefore show that Parliament, although obviously conscious that it would allow some people to break their promises, thought that this injustice was outweighed by the need to protect people from being held liable on the basis of oral utterances which were ill-considered, ambiguous or completely fictitious. This means that while normally one would approach the construction of a statute on the basis that Parliament was unlikely to have intended to cause injustice by allowing people to break promises which had been relied upon, no such assumption can be made about the statute."
The dispute
"The dispute
2. Golden Ocean claims (i) that Trustworth Shipping Pte Ltd ("Trustworth") repudiated a 10 year charterparty dated 2nd February 2008: (ii) that Trustworth had been nominated by SMI as charterers; and (iii) that that the charter was guaranteed by SMI. Golden Ocean claims to have suffered losses of around US $ 54 million by reason of that repudiation and claims that sum against SMI under the guarantee. SMI and Trustworth say that Mr Salgaocar did not have authority to bind them to any contract either of charter or of guarantee, and it is on that account that Mr Salgaocar is sued for breach of warranty of authority to enter into both contracts on behalf of SMI and Trustworth.
3. Until very shortly before the hearing of the application the defendants claimed that there was no serious issue to be tried that Mr Salgaocar had authority, whether actual or ostensible, to contract on behalf of SMI. However, in late October, following disclosure ordered by Walker J of a number of previous fixtures, the defendants (first Mr Salgaocar, and then SMI) indicated that they would not be making that claim on the present application. There is, accordingly, and as I find, an arguable case that he did have such authority. I am also satisfied that there is, as the defendants also accept, an arguable case that he had authority to act on behalf of Trustworth. I shall, therefore, proceed, for the purposes of this judgment upon the assumption (without deciding) that Mr Salgaocar had authority to act on behalf of those two companies.
The background
4. SMI is a private family company. As at February 2008 Mr Salgaocar's shareholdings gave him ultimate control of about 82.5% of its shares. Members of his immediate family held a further 6.5% of the shares directly. Under the Articles of Association Mr Salgaocar had power to appoint and remove one third of the Board of Directors. Throughout 2008 SMI's website described SMI as a leading conglomerate of industries led by Mr Salgaocar. It featured a formal photograph of Mr Salgaocar with his two sons, Sameer and Arjun Salgaocar, who were described as directors of the company. Under the photograph were the words "Anil V. Salgaocar Chairman & Managing Director, Salgaocar Mining Industries Pvt. Ltd (Center)". Mr Salgaocar had, according to Mr Gautam Radia, his son-in law who is an authorised signatory of SMI, "...guided the fortunes of SMI for approximately 30 years..."
5. In fact Mr Salgaocar resigned as a director of SMI on 31st March 2006. Thereafter his two sons appear to have been the only directors even though Article 113 (b) of SMI's Articles of Association requires there to be a multiple of 3 directors.
6. The website described SMI as being in the business of mining and exporting iron ore worldwide. Mr Salgaocar and SMI had extensive dealings with shipbrokers, Howe Robinson & Co Ltd ("Howe Robinson"). The main contact at Howe Robinson was Mr Guy Hindley ("Mr Hindley") who was based in London. Mr Hindley generally acted on the oral instructions of Mr Salgaocar which Mr Hindley confirmed by email to him."
"The history
7. On 3rd January 2008 Mr Hindley e-mailed Mr Salgaocar to tell him of the availability, from the 4th quarter of 2009, of a number of new buildings for purchase from the Jinhaiwan yard, including 176,000 dwt Capesize bulkers. In the event negotiations began in early January 2008 between Golden Ocean and SMI for a 10 year charter of a Capesize new building expected to be delivered in October 2009.
8. Golden Ocean were the Owners of the subject vessel. The individuals concerned on their behalf were Mr Anders Zorn, Mr Jens Martin Jensen and Mr Jon Flaaten. Howe Robinson were their brokers as well. The individuals at Howe Robinson who acted for Golden Ocean were Mr Bernd Hintz and Mr Daniel Hall.
9. On 8th January 2008 Golden Ocean offered to charter to SMI or an account to be guaranteed by SMI[2], a vessel described as "Golden Ocean Newbuilding Capesize Bulk Carrier Newbuilding ex Jinhaiwan, China", at $ 42,500 daily for 10 year 2 months more or less at charterers' option with an option to purchase at the end of the charter period at US$ 93 million. SMI countered at $ 40,000 per day and $ 85 million for the purchase price "a/c Trustworth Pte Limited Singapore fully guaranteed by Salgaocar Mining Industries Goa". That offer was "- subject all further terms + details - subject owners board approval - subject charts reconfirmation to be lifted latest 5 working days after owners board approval lifted".
10. The disclosure ordered by Walker J herein has revealed that since 2005 Howe Robinson has fixed around 125 vessels on Mr Salgaocar's instructions with Trustworth as charterers. In 43 of those fixtures Trustworth was guaranteed by SMI. Four of those fixtures post dated the fixture in issue in the present case. Of those 43 fixtures 36 involved guarantees in the same form as in the present case namely by a single line in the charterparty. In January and February 2008 Howe Robinson concluded 15 other fixtures on Mr Salgaocar's instructions, three of which were guaranteed by SMI.
11. Trustworth is a Singaporean company which, Golden Ocean claims, was used for tax reasons and because Indian foreign exchange regulations make it difficult to remit foreign currency abroad. The evidence indicates that it was, in effect, the chartering arm of SMI. Its use appears to have been in order to distance the charter from India.
12. The negotiations proceeded on the basis of the charterers being "Trustworth fully guaranteed by SMI". They were conducted by e-mail, by which Messrs Hintz and Hall of Howe Robinson communicated with Messrs Zorn, Flaaten and Jensen of Golden Ocean; Mr Hindley of Howe Robinson communicated with Mr Salgaocar, and the Howe Robinson brokers communicated with each other.
13. On 10th January 2008 Mr Hindley e-mailed Mr Salgaocar to tell him that he had managed to get Owners to confirm the last offer he had made so "we are agreed on everything except subjects". Mr Hintz e-mailed to Mr Zorn of Golden Ocean to the same effect the next day.
14. At 17.56 on 11th January 2008 Mr Hindley e-mailed to Mr Salgaocar, and at 19.40 Mr Hintz e-mailed to Mr Zorn recaps of the fixture in the same terms which included "- subject all further terms Owners nype/moa - subject Owners board approval to be lifted latest 1700 hours London on Monday 14th January 2008 - subject to Charterers approval to be lifted latest 1700 hours on Tuesday 15th January 2008". The recap was, as before, "A/c Trustworth Pte Limited Singapore fully guaranteed by Salgaocar Mining Industries Goa". These recaps followed agreement on the charterparty terms in e-mails passing between Mr Hintz and Mr Hindley.
15. The "approval" subjects were lifted on 14th and 15th January, leaving for negotiation the details of the NYPE charter and of the MOA for the purchase, if the option was exercised.
16. On 2nd February Mr Flaaten of Golden Ocean replied to an e-mail of Mr Hintz setting out charterers' proposal on the last outstanding points: "Agreed to the below and therefore fully fixed".
17. On 4th February Mr Hindley e-mailed to Mr Salgaocar "Pleased to confirm we have fixed subject to agreeing mutually acceptable terms on the MOA as follows…" and then set out a recap including the agreed charterparty terms. Mr Hintz e-mailed in the same terms to Mr Flaaten. The recaps were dated 2nd February 2008.
21st February The alleged making of the contracts
18. On 21st February at 12.30 am Mr Hall e-mailed to Mr Jensen of Golden Ocean the charterers' proposed MOA terms. These included the following additional clause:
"Throughout this Charter Charterers are to be given access to all Drydock, damage, Port State Control reports and Charterers authorised representatives are to be granted access to visit vessel whether in the yard, drydock or in port"
19. At 09.00 Mr Jensen e-mailed to Mr Hall "All ok – except re deposit-say 5 days" (a reference to the time for provision of the deposit after declaration of the purchase option) and suggested that the additional clause suggested by the charterers belonged in the charterparty.
20. Mr Hall forwarded that 09.00 e-mail to Mr Hindley in the following terms:
"Following back from Golden Ocean on the MOA
In the end I did not mention anything about pulling the tail shaft to them, as on reviewing the VLCC we did with them it was in there …anyway they agree to all Salgaocar's changes except deposit which I think quite right – do you know if it is already drawn up. If not suggest we put it in or otherwise do an addendum. Deposit seems very fair especially considering Salgaocar has the option on when to exercise.
Can I confirm this?"
That e-mail crossed the line between Mr Hall as broker for Golden Ocean and Mr Hindley as broker for SMI/Mr Salgaocar.
21. To that e-mail Mr Hall received a reply from Mr Hindley:
"YES. CONFIRM THE 5 DAYS THAT'S FINE.
CD U SEND ME RECAP – WITH TODAYS DATE?
SUGGEST TO GOLDEN OCEAN WE AGREE THE SAME DATE FOR C/P
CAN YOU GET ADDITIONAL CLAUSE PUT IN C/P AS DON'T THINK SAME HAS BEEN DRAWN UP YET THOUGH HAPPY FOR IT TO BE AN ADDENDUM
I'M RATHER HOPING WE CAN AGREE THAT VESSEL IS GOLDEN BEIJING AS SALGAOCAR LIKED THE NAME!
THANKS V. MUCH"
22. Mr Hall then e-mailed Mr Jensen in response (on the e-mail thread) to his 09.00 e-mail (see para 19 above):
"Many thanks yours - we are all done!
Charterers confirm ok to change deposit to within 5 days. Also will put the inspection clause in the C/P (or as an addendum).
Can we make the C/P and MOA today's date? (Or have you already announced this deal?)
Also can we tell/confirm to Salgaocar that the Vessel will be the M.V. Golden Beijing?"
23. On 21st February 2008 Mr Hall e-mailed to Golden Ocean a recap of the MOA.
24. At some date after 17th July 2008 Howe Robinson drew up a charterparty between Golden Ocean and "TRUSTWORTH SHIPPING PTE LIMITED. . . Charterers of SINGAPORE fully guaranteed by SALGAOCAR MINING INDUSTRIES, GOA". The pages of the amended NYPE form (but not the attached riders) have Howe Robinson's stamp on them. At the end of the NYPE form appears the following:
"Owners Charterers
For the Owners
GOLDEN OCEAN GROUP LIMITED, BERMUDA
By e-mail authority received from
GOLDEN OCEAN MANAGEMENT AS
Dated 17th July 2008
For and on behalf of
HOWE ROBINSON SHIPBROKERS, LONDON
Director
As Broker Only."
25. There is no reference to the guarantee or the guarantors in the e-mail correspondence and the working copy of the charter other than in the description of the Charterers. The copy of the charter referred to in para 24 was never signed.
"Subsequent events
26. On 16th September 2009 Mr Salgaocar's secretary e-mailed to Mr Hindley a note from Mr Salgaocar in which he asked Mr Hindley to specify to Owners that the quantity of bunkers required on delivery should be sufficient for the vessel to arrive in Hong Kong where further bunkering would take place up to Singapore and thereafter at Singapore for a voyage Singapore – Goa – Singapore. He asked Owners to calculate the bunkers required and for them to arrange to paint "SALGAOCAR" on both sides of the hull and to mark "S" on the funnel in accordance with a logo which was enclosed.
27. On 30th September Golden Ocean declared to Charterers that the vessel named "Golden Future" would be delivered to Charterers pursuant to the 2nd February 2008 charter and that she would be delivered on/about mid November, say 17 November. Mr Hindley passed this declaration on to Mr Salgaocar together with notification that Owners had agreed to the painting requests at Charterers' cost and that Owners had asked technical staff about bunkers to Goa.
28. On 28th October 2009 Mr Hintz passed on a message he had received from Mr Hindley that "with changes in the group etc. . the one thing they do not rpt do not want is any Salgaocar markings on the vessel" and that Golden Ocean should go ahead and put their own markings on the hull and funnel.
29. On 4th December Owners gave Charterers 30 days approximate notice of delivery of the "Golden Future" for 5th January 2010. On 15th December Owners gave 20 days approximate notice of delivery for that date.
30. On 8th December 2009 Mr Rohit Mathrani, a director of Trustworth wrote to Mr Hindley stating "once again" that there was no guarantee made available by SMI and that Trustworth was unable to proceed further with the Charter Party.
31. On 16th December 2009 Mr Mathrani e-mailed to Mr Kerr-Dineen, the joint chairman of Howe Robinson to say that there was "no Charter Party between [Trustworth] and [Golden Ocean]". Mr Hintz forwarded that e-mail to Mr Zorn that day and expressed "our total surprise at the denial of the existence of a charterparty". Mr Hintz referred to the large number of fixtures which Howe Robinson had concluded for Trustworth and another company linked to SMI, saying that "our authority for fixing all these ships (numbering in total close to some 250 fixtures) came directly and solely from Mr A V Salgaocar and the negotiation and handling of the present fixture was handled in the same manner". He referred to a number of changes in the Salgaocar group, the division of Mr Salgaocar's time between his business and his duties as a member of the Goan assembly and to his declining health, and to the fact that control of the business appeared to be being passed to his family and in particular his two sons, daughter and son-in-law. He also set out a message that had been sent by Mr Kerr-Dineen to Mr Mathrani which included the statement that:
"this charter was concluded on behalf of trustworth in accordance with authority we received from mr Salgaocar. Mr Salgaocar also confirmed that the charter was fully guaranteed by Salgaocar Mining Industries, GOA. This is the basis on which the vessel was fixed."
32. Trustworth reiterated its denial of a charter and a guarantee in an e-mail of 23rd December 2009 to Ince & Co, in response to a letter from Ince to SMI of 22nd December asserting the existence of both. On 24th December 2009 Ince & Co wrote to Trustworth treating its conduct as a renunciatory breach of the charterparty which Golden Ocean accepted.
33. On 23rd December Golden Ocean had threatened to issue a press release stating that Trustworth had failed to honour its obligations under the charter and had stated without justification that there was no contract or guarantee; and that Golden Ocean would pursue a claim for damages and arrest Trustworth and SMI assets if Trustworth did not confirm by midnight that it would take the vessel. This produced a response from SMI dated 24th December warning Golden Ocean against issuing the press release and reiterating that it had entered into no contract of guarantee with Golden Ocean nor authorised anyone to provide such a guarantee on their behalf."
i) The claims against both SMI and Mr Salgaocar were made in respect of contracts governed by English law (CPR PD6B, para 3.1(6) (c)).
ii) In relation to Mr Salgaocar, a claim has been made against SMI, and there was between Golden Ocean and SMI a real issue which it was reasonable for the court to try, and Mr Salgaocar was a necessary or proper party to that claim (CPR PD6B para 3.1(3)).
iii) The claims had a reasonable prospect of success and England was the proper place to bring the claims.
i) a binding charterparty was concluded between Golden Ocean and Trustworth;ii) Mr Salgaocar had authority to bind Trustworth;
iii) Mr Salgaocar had authority to bind SMI to a guarantee;
iv) the guarantee if there was one is governed by English law as a result of the express choice of law in the charterparty, which additionally contained a London arbitration clause.
1) There is no single document which can be identified as the contract of guarantee.2) The final email sent on 21 February 2008 set out by the judge at paragraph 21 of his judgment reproduced above, which for convenience I will identify as did the parties at the hearing as page B106, although more accurately the last message recorded at the top of that page, is not itself a contract of guarantee but simply brings into effect a guarantee, doing so by operation of law, because of the extent of the antecedent agreement as to a charterparty and the removal of the condition to an agreement becoming binding, the conclusion of a mutually acceptable MOA pursuant to which the charterers could at their option purchase the vessel.
3) The email at B106 does not refer to any of the terms of the guarantee - nor even save inferentially to its existence.
4) The email at B106 contemplates the creation of a future instrument, a formal charterparty document, which will be the one instrument comprising a contract of guarantee which alone satisfies the statutory requirement for an agreement in writing.
5) The email at B106 is not signed. It contains no more than a salutation from Mr Hindley to Mr Hall.
6) Even if B106 is signed, Mr Hindley had no authority to sign a contract of guarantee.
Discussion
"Contracts for sale etc. of land to be made by signed writing.
(1) A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.
(2) The terms may be incorporated in a document either by being set out in it or by reference to some other document.
(3) The document incorporating the terms or, where contracts are exchanged, one of the documents incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract."
There are two obvious points to be made. First, section 4 of the Statute contains no similar language requiring all the terms of the contract to be incorporated in one document. Secondly, the purity of this requirement is in any event compromised by sub-section (2) which permits incorporation of all the terms by reference to some other document.
"A/C Trustworth Shipping Pte Ltd Singapore fully guaranteed by Salgaocar Mining Industries Goa."
followed by the rubric:-
"otherwise terms as per Channel Navigator Cp dtd 21.4.2005 with logical alterations and the following amendments . . ."
There then followed a further list of amendments to both the main body of the charterparty, which was on the New York Produce Exchange form, and to the numbered rider clauses. The charterparty, if there was one, remained in precisely this form, subject only to the agreement to add the clause which was agreed on 21 February concerning charterers' access to dry dock, damage and Port State Control reports and which it was further agreed belonged more appropriately in the charterparty than in the MOA.
"Charterers performance to be guaranteed by Messrs Shirlstar Container Transport Ltd of London as follows: the below quoted letter is to be issued by Messrs Shirlstar Container Transport Ltd of London on their own letter paper and it to be signed by Sir Benjamin Slade or a senior officer who is authorized to enter into binding contracts on behalf of Messar Shirlstar Container Transport Ltd of London."
Then the recap proceeded to set out the terms of a letter of guarantee. A formal charterparty was drawn up some days later, but dated, in accordance with normal practice, 24 December 1983.
"Fourthly Mr. Steinfeld submits that since it was contemplated that the guarantee would be in writing, no binding contract was concluded until that should occur, which it never did. It is clearly correct that the guarantee was to be in writing –
. . . on Shirlstar letter paper signed by Sir Benjamin Slade or a senior officer.
The question is whether there could be a binding oral contract to issue such a guarantee. Mr. Steinfeld relied on the judgment of Lord Greene, M.R. in Eccles v. Bryant and Pollock, [1948] Ch. 93 at p. 99:
When parties are proposing to enter into a contract, the manner in which the contract is to be created so as to bind them must be gathered from the intention of the parties express or implied. In such a contract as this there is a well-known, common and customary method of dealing; namely by exchange . . .
The contract in that case was for the sale of a house. For my part I consider that further assistance is to be derived from the classic statement of Mr. Justice Parker in Von Hatzfeldt-Wildenburg v. Alexander, [1912] 1 Ch 284 at p. 288:
It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties, it is a question of construction whether the execution of a further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will in fact go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognize a contract to enter into a contract. In the latter case there is a binding contract and the reference to the more formal document may be ignored. The fact that the reference to the more formal document is in words which according to their natural construction import a condition is generally, if not invariably, conclusive against the reference being treated as the expression of a mere desire.
By the word condition, I think that the Judge meant a condition precedent to the formation of a binding contract.
In applying those principles to the present case, it seems to me of paramount importance that Mr. Sorensen and Mr. Bott were in the process of negotiating a charter-party. That too, it was contemplated, would be incorporated in a formal written document. But it is not argued that the charter-party would not be binding forthwith, once all its terms had been agreed. Mr. Steinfeld expressly disclaimed any such contention; and as I have already said, I cannot recall any case where it has been put forward in the last 25 years.
Against that background, how can it have been the intention of the parties that the owners should be bound by the charter-party as soon as all the terms were agreed, but that Shirlstar would not be bound by their promise unless and until they executed a formal written document? Mr Steinfeld suggests that the owners would have been entitled to treat the charter-party as repudiated if a formal written guarantee were not provided promptly. That may well be right; but I am quite satisfied that, on a true interpretation of the bargain, it was not their only protection. The offer of Mr. Bott on behalf of Shirlstar was to execute a guarantee in the form required; and that offer became binding as a contract, once the owners accepted it by agreeing with the charterers on the remaining terms of charter-party."
"Even then it may be said that the two later documents do not contain all the terms (or all the material terms, if that be the test) of the contract – for example because they make no mention of English law and jurisdiction. But the first telex of Jan. 6 in turn refers to "the letter of guarantee". It seems to me consistent with the cases on express or implicit reference in one document to another to take that as a reference to the telex of Dec. 23. That document did contain the full terms of the contract, save that it named the charterers as Transaltic and omitted the date of the charter-party. It is not said to have been signed by Shirlstar. Nevertheless I consider that the three telexes together, with the possible addition of the actual charter-party, form a sufficient note or memorandum. The last was signed by Shirlstar, and references can be traced back from it to each of the others. So in my judgment there is a sufficient note or memorandum."
"57. I do not accept that, if an agreement has been made in writing, there is some limit to the number of documents to which reference is permissible. If there is said to have been an agreement in writing the Court is entitled to look at those documents which are said to constitute the agreement, however many they may be. In contracts made in the manner in which the present contracts are said to have been made, that involves looking at more than two documents (one of offer and one of acceptance), both because the terms of the charterparty and of the memorandum of agreement were negotiated sequentially and because, in negotiations of the "Accept/except" type the last offer, which may only except one small item (such as whether a sum should be paid in 7 as opposed to 5 days), will not be intelligible without reference to the preceding offers and counteroffers."
I agree with the judge. Furthermore I consider that his conclusion is not simply "well arguable" but also correct and that we should so decide. I do not consider that his conclusion frustrates the purpose of the Statute. The purpose of the Statute is not, as Mr Kendrick submitted, to prevent the court considering continuing negotiations. The purpose of the Statute is rather, in part, to prevent the court having to resolve disputes as to oral utterances. In the present case it is in fact necessary to look at very few documents, arguably only two, in order to identify a clear agreement. Subject to Mr Kendrick's other points and subject to proof of authority at trial, it would I think be a serious blot on our commercial law if SMI could here avoid liability because its obligation is to be found written in two documents rather than in one.
Signature
"But here the authority was not a general authority at all, but an authority to forward to the plaintiff's advisers certain particular documents. And although the defendant may not have been contemplating that those documents would form a note or memorandum of the contract sufficient to satisfy the Statute of Frauds (indeed nothing could have been further from his thoughts), that did not in my judgment invalidate the authority to forward the documents, or prevent all those legal consequences flowing from the forwarding which would undoubtedly have flowed from it had the defendant forwarded the statements himself and signed the letters enclosing them. It seems to me that the unintentional by-product of satisfying the Statute of Frauds may be produced as completely by a note or memorandum signed by an agent of the party as by a note or memorandum signed by the party himself, provided, of course, that the agent had authority to sign the particular note or memorandum."
"My Lords, it is standard practice, when two brokers, acting on behalf of their respective principals, negotiate by telephone or telex or both, the terms on which a ship is to be chartered, and terms are fully agreed, for those terms to be embodied in a written charterparty in which they are subsumed. It seems to me to be clear that Tramp and Marti intended to follow this standard practice in the present case, not only in respect of the terms of the main contract between the owner and charterers, but also in respect of the terms of the collateral contract of guarantee between the owners and Marti. The question is, however, whether, so far as the collateral contract of guarantee between the owners and Marti is concerned, the two brokers achieved the result intended. That question arises because Marti have raised what the Court of Appeal regarded, rightly in my view, as an arguable case, that all the signatures affixed by Marti to the pages of the charterparty, including the page containing clause 24, were affixed by them solely as agents of the charterers and not also for themselves as a contracting party.
In these circumstances it is necessary, in order to decide whether the owners can enforce the agreement of guarantee against Marti, to consider that question on two alternative assumptions. The first assumption is that Marti affixed their signature to the page of the charterparty containing clause 24 as a contracting party. The second and alternative assumption is that every signature affixed by Marti to the charterparty, including the signature on the page containing clause 24, was affixed by them solely as agents for the charterers.
I consider the case, first, on the assumption that Marti signed the page of the charterparty containing clause 24 as a contracting party. On that assumption, the prior oral agreement of guarantee was subsumed in the written agreement contained in clause 24. The latter agreement, moreover, was signed by Marti on their own account. In the result there was, on the first assumption, a written agreement of guarantee signed by the party to be charged therewith, so as to render that agreement enforceable by the owners against Marti in the first of the two ways of achieving enforceability prescribed by section 4 of the Statute of Frauds.
I consider the case, secondly, on the alternative assumption that every signature affixed to the charterparty by Marti, including that on the page containing clause 24, was affixed by them solely as agents for the charterers. On that assumption, Marti were not parties to the charterparty at all, and the prior oral agreement of guarantee between the owners and Marti was never subsumed in clause 24 of the charterparty but remained intact as when it was first made. The question then arises whether clause 24 of the charterparty constituted a memorandum or note of that prior oral agreement signed by Marti, so as to make that agreement enforceable by the owners against Marti in the second of the two ways of achieving enforceability prescribed by section 4.
My Lords, there were cited to your Lordships in the course of argument a considerable number of cases in which the courts have had to consider and decide what does or does not constitute a sufficient memorandum or note of an agreement of guarantee signed by the party to be charged for the purposes of section 4. I do not propose, however, to refer to more than one of those cases, In re Hoyle [1893] 1 Ch 84, in which it seems to me that the basic principle relevant to the present case was shortly and in my view correctly explained by A. L Smith L. J. He said, at p. 100:
"The statute enacts that no action shall be brought upon a promise of a certain description unless there is a note or memorandum thereof signed by the party to be charged. A letter to a third party has been held enough; an affidavit made in a different matter has been held to suffice; and I should say that an entry in a man's own diary, if it were signed by him and the contents were sufficient, would do. The question is not what is the intention of the person signing the memorandum, but is one of fact, viz., is there a note or memorandum of the promise signed by the party to be charged? Here the testator by his will, which he signs, recites the guarantee sued on. The contents of the statement are sufficient, and why is this not a memorandum in writing signed by the party to be charged? I say that it is."
I would refer also to similar statements of principle made by Lindley L.J., at p. 98.
Applying the statements of principle made in In re Hoyle above to the present case, it seems to me to be wholly irrelevant, in relation to the question which I am now considering, with what intention, or in what capacity, Marti signed the page in the charterparty containing clause 24, whether as agents for the charterers only or for themselves as well. Clause 24 contained all the terms of the prior oral agreement of guarantee and Marti's signature was affixed to the page containing that clause. On those facts the page of the charterparty concerned contained, in my opinion, a sufficient memorandum or note of the prior oral agreement of guarantee signed by the party to be charged, so as to satisfy the second requirement for achieving enforceability prescribed by section 4. It follows from what I have said that I consider, with great respect to the Court of Appeal, that they were in error in treating the issue of the intention with which, or the capacity in which, Marti signed the page of the charterparty concerned, as relevant to, let alone decisive of, the question whether that page contained a sufficient memorandum or note of the prior oral agreement signed by Marti, so as to make that agreement enforceable in the second of the two ways prescribed by section 4. "
The claim for breach of warranty of authority
"Article 3
Freedom of choice
1. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or a part only of the contract.
Article 4
(1) To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected. . . .
(2) Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence. . . .
(3) Notwithstanding the provisions of paragraph 2 of this Article, to the extent that the subject matter is a right in immovable property or a right to use immovable property it shall be presumed that the contract is most closely connected with the country where the immovable property is situated.
(4) A contract for the carriage of goods shall not be subject to the presumption in paragraph 2. In such a contract if the country in which, at the time the contract is concluded, the carrier has his principal place of business is also the country in which the place of loading or the place of discharge or the principal place of business of the consignor is situated, it shall be presumed that the contract is most closely connected with that country. In applying this paragraph single voyage charter-parties and other contracts the main purpose of which is the carriage of goods shall be treated as contracts for the carriage of goods.
(5) Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country."
"In this case the contract usually arises by implication, but it is not likely to contain a choice of law, and it is not easy to see a characteristic performance or equivalent for it. It will presumably often come within the residual provisions of Articles 4.3 or 4.4 and as it is clearly a contract ancillary to the proposed contract between principal and third party, albeit such a contract did not come into force, it would seem that it should be governed by that law, or what it would have been, by attraction."
"This Article does not permit the court to infer a choice of law that the parties might have made where they had no clear intention of making a choice. Such a situation is governed by Article 4."
However, I note that immediately before this passage we find:-
"Other matters that may impel the court to the conclusion that a real choice of law has been made might include an express choice of law in related transactions between the same parties . . ."
Whilst I doubt whether the authors had in mind specifically a contract of warranty of authority, what is there said is in my judgment of direct application to the situation under consideration. For my part I think that Article 3 is engaged. I think that the unusual circumstances of this implied contract demonstrate with reasonable certainty a choice that it should be governed by the same law as the proposed principal contract to which it is ancillary. However I consider that the same result can be achieved by application of Articles 4.1 and/or 4.5.
"133. I do not accept Mr Kimmins' submission that the characteristic performance of a warranty of authority contract is the provision of the warranty. The provision of the warranty is the promise, not the performance of it. A person who warrants his authority warrants that a state of affairs exists. The warranty is fulfilled if he has the authority which he claims to have. It is a somewhat curious use of language to describe that as a performance effected by the warrantor, an expression more easily applicable to a physical act. But since, in essence, the warrantor agrees to see to it that he has authority, he can properly be regarded as the party who is to effect the performance which is characteristic of the contract. In addition there is no one other than Mr Salgaocar who can be said to perform the contract[3]. Accordingly the contract is to be presumed to be most closely connected with India, Mr Salgaocar's habitual residence.
134. The next question is whether it appears from the circumstances as a whole that the contract whereby Mr Salgaocar warranted his authority is more closely connected with England. Golden Ocean submits that that is so because English law was to govern the guarantee and charterparty, which, had he had authority, would have been concluded between Mr Salgaocar and his apparent principals. There is an express choice of English law in the charterparty, which also contains the guarantee. Golden Ocean supposed itself to be contracting with SMI for the provision to it of a guarantee to be governed by English law. It was entitled to expect that the question of Mr Salgaocar's warranty of authority should be determined by the system of law by reference to which he was negotiating the contract in respect of which he purported to act as agent.
135. Such an approach seems to me to fall foul of the observations of Hobhouse LJ (with whom the rest of the Court agreed) in Credit Lyonnais v New Hampshire [1997] 2 Lloyd's Rep 1 in connection with the provisions of sections 2 (2), (3) and (4) of Schedule 3 A of the Insurance Companies Act 1982, which were similar in terms to sections (1), (5) and (2) of article 4 of the Rome Convention, when he said [p 7]:
"I accept the defendants' submission that once it is seen that there is no choice of applicable law satisfying par. 2 (i) of the schedule, the question of choice and absence of choice becomes irrelevant to the question of ascertaining with what State the contract is most closely connected. Similarly to refer to the contemplation by one party or another that certain local laws may or may not be relevant is to be influenced by considerations of inferred choice and connection with legal systems and not with the question of performance and the location of performing parties."
This passage was quoted with approval in Samcrete Egypt Engineers and Contractors S.A.E. v Land Rover Exports Ltd [2001] EWCA Civ 2019.
136. In the present case any contract whereby Mr Salgaocar warranted his authority to act for SMI seems to me more closely connected with India, where he and SMI resided and where he would secure the necessary authority from SMI. Further Indian law is the law which governs the relationship between SMI and Mr Salgaocar; and the claim for breach of warranty of authority only arises if there is no valid contract (under any law) between Golden Ocean and SMI. At any rate Golden Ocean has not persuaded me that it has much the better argument on this point; that distinction belongs to the defendants.
137. Accordingly I would not allow the permission to serve Mr Salgaocar out of the jurisdiction to stand on the basis that any warranty of authority contract was governed by English law."
"Identifying the characteristic performance of a contract obviously presents no difficulty in the case of unilateral contracts."
Again, I doubt if the authors had in mind specifically the contract of warranty of authority. I would therefore regard Article 4.1 as engaged. The presumption in Article 4.2 does not apply because the characteristic performance cannot be determined – Article 4.5. I would hold England to be the country with which the contract is most closely connected. I recognise that Article 4 is couched in terms of performance and the location of performing parties, not legal systems – cf the observations of Hobhouse LJ in Credit Lyonnais set out by the judge at paragraph 135. Again however I respectfully doubt whether these observations, or those of the Court of Appeal in Samcrete, were directed towards the special and perhaps unique case of the warranty of authority which arises by implication in connection with the negotiation of a contract intended to be governed by English law, capable of giving rise to a contractual obligation when relied upon by the apparent conclusion of such a contract. Where additionally the principal contract is negotiated through London brokers on both sides and is, if made, subject to arbitration in London, it is not I think an impermissible approach to Article 4 to regard both that contract and the contract ancillary thereto as being more closely connected with England than with any other country. Indeed, in respectful disagreement with the judge, I do not consider that either India or Indian law has any relevant connection with the contract whereby Mr Salgaocar warranted his authority to act on behalf of SMI (or Trustworth). Whilst Indian law no doubt governs the relationship between SMI and Mr Salgaocar, it is only in the event that pursuant to that law Mr Salgaocar lacked authority that his warranty of authority becomes relevant. That warranty of authority is an implied incident of a negotiation directed to the formation of a contract governed by English law. The offer is accepted by apparently concluding with the warrantor's principal a contract governed by English law. The connection is therefore exclusively with England and English law.
"59. It thus follows from the Giuliano and Lagarde report that the objective of article 4(5) is to counterbalance the set of presumptions stemming from the same article by reconciling the requirements of legal certainty, which are satisfied by article 4(2) to (4), with the necessity of providing for a certain flexibility in determining the law which is actually most closely connected with the contract in question.
60. Since the primary objective of article 4 is for there to be applied to the contract the law of the country with which it is most closely connected, article 4(5) must be interpreted as allowing the court before which a case has been brought to apply, in all cases, the criterion which serves to establish the existence of such connections, by disregarding the "presumptions" if they do not identify the country with which the contract is most closely connected.
61. It therefore falls to be ascertained whether those presumptions may be disregarded only where they do not have any genuine connecting value or where the court finds that the contract is more closely connected with another country.
62. As is apparent from the wording and the objective of article 4 of the Convention, the court must always determine the applicable law on the basis of those presumptions, which satisfy the general requirement of foreseeability of the law and thus of legal certainty in contractual relationships.
63. However, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that identified on the basis of the presumptions set out in article 4(2) to (4) of the Convention, it is for that court to refrain from applying article 4(2) to (4).
64. In the light of those considerations, the answer to the fifth question must be that article 4(5) of the Convention must be construed as meaning that, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that determined on the basis of one of the criteria set out in article 4(2) to (4) of the Convention, it is for the court to disregard those criteria and apply the law of the country with which the contract is most closely connected."
Sir Mark Waller :
Lord Justice Rix :
Note 1 Special provision had by then been made for the sale or other disposition of an interest in land, where in any event the doctrine of part performance had to some extent mitigated the mischief to which the Statute had given rise – the defeat of commercial expectations by the lack of a written memorandum or note of an oral agreement – seeActionstrength, per Lord Bingham at page 545. [Back] Note 2 Mr Hindley’s e-mail to Mr Salgaocar of 8th January 2008 [C/1-2] refers to “account to be guaranteed by [SMI]”. Mr Hintz’s e-mail of 9th January to Golden Ocean [C/3-4] refers to his having “offered to chars – account to be guaranteed by [SMI]”. The e-mail to Mr Hindley does not appear to be in the papers. [Back] Note 3 In Samcrete Egypt Engineers v Land Rover Exports Ltd (see para 135) the Court of Appeal held that there was no room for doubt that the obligation characteristic of the performance of a guarantee (which is somewhat analogous to a warranty of authority) was the payment of money by the guarantor (para 38). The Giuiliano and Lagarde Report is to the same effect (see para 36 of the judgment). The Court also held that in the absence of an express or inferred choice of law under Article 3, the Article 4 (2) presumption should only be disregarded in circumstances which clearly demonstrated the existence of connecting factors justifying the disregard of the presumptions in Article 4 (2). [Back]