The wrong charterparty, the right injunction: G2 Ocean v Tokio Marine Brasil Seguradora (The Tanchou Arrow) [2026] EWHC 997 (Comm)

Anti-suit injunctions in support of London arbitration agreements are now well-trodden territory. Even so, every so often a case throws up a useful variation on the perennial incorporation question. The Commercial Court’s recent decision in G2 Ocean AS v Tokio Marine Brasil Seguradora SA (The Tanchou Arrow) [2026] EWHC 997 (Comm) is one such case. HHJ Pelling KC granted an interim injunction restraining a subrogated cargo insurer from continuing proceedings in Brazil, on the footing that an arbitration clause had been incorporated into the bills of lading even though the bills referred to a “charterparty” that did not exist.

Facts

G2 Ocean was the contractual carrier of a parcel of bagged urea. The cargo arrived damaged. The consignee’s cargo insurer, Tokio Marine Brasil Seguradora, paid out and, having taken subrogated rights, commenced proceedings against G2 Ocean in Brazil. G2 Ocean applied to the Commercial Court for an anti-suit injunction.

The bills of lading purported to incorporate the terms of “the charterparty dated 12 June 2024”. No such charterparty existed. What did exist were two booking notes of that same date, each of which contained a London arbitration clause.

The decision

HHJ Pelling KC granted the interim injunction. Three aspects of the judgment are worth pulling out.

First, on subrogation. The Judge applied the long-established principle that an insurer enforcing derived contractual rights must take them subject to the contract’s dispute-resolution provisions. There was nothing surprising in that; but it is a useful restatement, and one that foreign cargo insurers continue to test with regrettable optimism.

Second, on incorporation. The harder question was whether the bills’ reference to a non-existent “charterparty” could be read as picking up the booking notes of the same date. The Judge held that, to the high degree of probability required for the grant of an interim injunction, it could. He had regard to the factual matrix — two booking notes of precisely the date specified in the bills, each containing an arbitration clause — and to the absence of any alternative candidate document. The orthodox approach was therefore applied: the court will give effect to the parties’ commercial intentions where the document referred to is misdescribed but identifiable from the surrounding circumstances.

Third, on fortification of the cross-undertaking. The Judge required G2 Ocean to fortify, but he was content to accept a Letter of Indemnity issued by the London office of a P&I Club as sufficient security, in the order of USD 85,000. That is a practical point worth noting: where a respondent is pressing for more than a bare cross-undertaking, a Club LOI may now be the path of least resistance — proportionate, easy to produce, and (as this case confirms) acceptable to the court.

Comment

None of this is revolutionary, but the decision is a useful one in three respects.

First, it confirms that the standard framework for incorporation is robust enough to accommodate sloppy bill-of-lading drafting. A bill that refers in terms to a “charterparty” when none exists will not necessarily defeat incorporation, provided a contemporaneous booking note plainly contains the clauses the parties had in mind. That is a comfort to carriers whose paper trail is, shall we say, less than immaculate.

Second, it reinforces that subrogated foreign insurers can expect short shrift when they attempt to side-step a London arbitration clause by suing in their home courts. The English court will move quickly, and on the now-familiar Angelic Grace / Jay Bola footing.

Third, and more practically, the decision adds another instance to the growing list of Commercial Court authorities accepting a P&I Club LOI as fortification. That is useful both for owners (and their underwriters) and for the Clubs’ London correspondents, who can now point to a recent judgment in support of the proposition.

Takeaway

For anyone acting on a bill-of-lading dispute where the bill refers to a non-existent or misdescribed charterparty: do not be put off by the discrepancy. The English court will look to what document the parties most plausibly had in mind, and will give effect to it. As ever in shipping, the substance matters more than the form.