“Subject to review” in conclusion of charterparty.

In Toptip Holding Pte Ltd v Mercuria Energy Trading Pte Ltd [2017] SGCA 64, the Court of Appeal of Singapore considered the effect of a ‘subject to review’ clause in an exchange of emails concerning the conclusion of a charterparty.  Mercuria had made an offer “otherwise subject to review of charterers pro forma charterparty with logical amendment” to which Toptip had replied “we confirm acceptance of your offer”. This showed that the parties intended to be immediately bound, even where there would be later discussion of standard terms.  A copy of a charter used by the parties several months earlier was then sent to the broker.

 

The Court of Appeal held that a contract had been concluded and that Mercuria were entitled to damages following a subsequent repudiation by Toptip. The “subject to review” clause was to be distinguished from “subject to contract” or “subject to details”. It was either a condition precedent or a condition subsequent (as in The Pacific Champ [2013] 2 Lloyd’s Rep 320.). Here it was the latter and the  words “with logical amendments” indicated only amendments consequential to what had already been agreed”.

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