JANUARY 9, 2018
[Glencore Agriculture BV v Conqueror Holdings Ltd [2017] EWHC 2893 (Comm)]
… Glencore and Conqueror entered into a charterparty that provided for Conqueror to charter their vessel, AMITY, to Glencore to transport grain. Following an email instruction from Mr Oosterman of Glencore, the AMITY had remained in port in the Ukraine for 9.2 days longer than it should have done, and Conqueror claimed damages for this period of detention amounting to $43,176.27.
Conqueror’s representative sent a letter before action to Mr Oosterman’s email address but he did not receive a response… The letter was sent to Mr Oosterman’s email address, and once again no response was received.
Given the “radio silence” from Glencore, Conqueror appointed Mr Marshall as its own arbitrator… In a letter sent by email to Mr Oosterman’s email address, Conqueror called upon Glencore to appoint its own arbitrator. Once again no response was received…
Mr Marshall conducted the arbitration and both he and Conqueror continued to send correspondence, directions, and so on to Mr Oosterman’s email address, and surprise, surprise, there was no response. Indeed, Glencore says that it was unaware of the proceedings until it received the arbitration award by post.
High Court proceedings
Glencore applied to have Mr Marshall’s award set aside. The issue for the court to decide was whether the notice of arbitration and the notice under section 17 of the AA 1996 were validly served by being sent to Mr Oosterman’s email address:
Popplewell J decided that the principles of agency were engaged because sending an email to an individual employee’s email address differs from sending it to a generic email address that might be on a firm’s website as the only email address of that particular company (such generic email addresses are commonly in the form of info@domainname). The judge said that where an email is sent to a generic email address, the sender can reasonably expect the person who opens the email to be authorised to deal with its contents, but whether an email sent to an individual employee’s email address constitutes good service:
“… must depend upon the particular role which the named individual plays or is held out as playing within the organisation.”
The judge decided that Mr Oosterman did not have actual authority to accept service of the notices, and nor did he have implied actual authority…
For the same reasons, the judge found that Mr Oosterman did not have ostensible authority, and he therefore concluded that the notice of arbitration and the notice under section 17 of the AA 1996 were not validly served…