CH Offshore Ltd v PDV Marina SA and Another (3) PDVSA Petroleo SA (Third Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Carr DBE,Mrs Justice Carr |
| Judgment Date | 12 March 2015 |
| Neutral Citation | [2015] EWHC 595 (Comm) |
| Docket Number | Case No: 2013/955 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 12 March 2015 |
and
[2015] EWHC 595 (Comm)
The Hon. Mrs Justice Carr DBE
Case No: 2013/955
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Charles Kimmins QC and Mr Edward Ho (instructed by Stephenson Harwood) for the Third Party
Mr Dominic Happé (instructed by E.G Arghyrakis & Co) for the Second Defendant
Hearing date: 2nd March 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is an application by the Third Party, PDVSA Petroleo SA ("Petroleo"), to set aside service of the Part 20 Claim Form and Particulars of Additional Claim issued against it by the Second Defendant, Astivenca de Venezuela CA ("Astivenca") ("the Petroleo claim"). Permission to serve on Petreleo out of the jurisdiction was granted by Burton J on 28 th March 2014 upon Astivenca's application dated 24 th March 2014. Acknowledgment of Service was filed by Petroleo on 15 th August 2014 indicating an intention to contest jurisdiction. The challenge is brought accordingly pursuant to CPR Part 11 and by way of application dated 24 th October 2014.
The grounds of application are, in summary:
a) that Astivenca cannot establish gateway jurisdiction pursuant to CPR Part 6.36 (and paragraph 3.1 (4) of Practice Direction 6B) ("the Practice Direction");
and in any event,
b) having regard to all the circumstances, the courts of England and Wales are not the proper place in which to bring the claim (see CPR 6.37(3)).
Witness statements have been served in connection with the application as follows:
a) for Petroleo: Mr Luis Alvarez (of Petroleo) dated 23 rd October 2014 and 23 rd February 2015; Mr Haris Zografakis (of Petroleo's solicitors) dated 20 th February 2015;
b) for Astivenca: from Ms Watton (of Astivenca's solicitors) dated 24 th March 2014 (in support of the application for permission to serve out of the jurisdiction) and 19 th January 2015; Mr Victor Gonzalez Urdaneta, in-house counsel at Astivenca, dated 17 th January 2015.
The parties have additionally referred to witness statements and expert evidence served in the main proceedings, including an expert report served in the main action from a Mr Ian Perrott addressing charter hire rates.
Each party has also served foreign (Venezuelan) law expert evidence:
a) for Petroleo: two reports from Mrs Adriana Padilla Alfonzo of Arenessen, Padilla & Associates ("Mrs Padilla") dated 23 rd October 2014 and 19 th February 2015:
b) for Astivenca: a letter from Mr Arturo Bravo of Bravo & Asociados ("Mr Bravo") dated 21 st March 2014 and an expert report from Mr Bernado Bentata of Bentata Associates ("Mr Bentata") dated 18 th January 2015. A further report from Mr Bentata was served around 4.30pm on 27 th February 2015, the last working day before this hearing, without notice. Petroleo objects to the admission of that report in circumstances addressed in more detail below.
The main action (including claims between the Defendants) ("the main action") has proceeded without any delay on account of Petroleo's outstanding jurisdictional challenge. There have been several case management conferences. Disclosure has taken place and witness statements have been exchanged between all parties to the main action. Indeed, the trial in the main action is fixed to commence on 20 th April 2015.
The Charterparties and the Protocol
The Claimant, CH Offshore Limited ("CH"), is the owner of the "AMETHYST" and "TURQUOISE", anchor handling tugs and supply vessels ("the vessels"). The First Defendant, PDV Marina SA ("Marina"), is a wholly owned subsidiary of the Venezuelan state owned energy company Petroleos de Venezuela SA ("PDVSA"). Astivenca is a private Venezuelan company. Petroleo is another wholly owned subsidiary of PDVSA and carries out offshore exploration and production in Venezuela.
By two separate BIMCO Supply Time Form 2005 charterparties dated 22 January 2008 Marina chartered the vessels from CH ("the Charterparties"). The Charterparties were for an initial period of four years at a daily rate of US$47,600 and contained an option in Box 9 to switch to (bareboat) "Barecon 2001" charterparties, which option was required to be exercised by the end of the first year of the Charterparties. The options were not exercised. The Charterparties were expressly governed by English law.
On 6 March 2008 CH, Marina and Astivenca entered into a Protocol of Assignment (the "Protocol") which provided, amongst other things, as follows:
" (F) For the duration of the Assignment, Astivenca shall for all purposes of the [Charterparties] act as the Charterer in place of PDV Marina and shall be fully liable and responsible for the [Charterparties] obligations in every respect and undertakes to procure the full and prompt performance of the said [Charterparties].
(G) Without prejudice to Article (F) above PDV Marina shall remain fully liable and responsible to CHO for the [Charterparties] in every respect and undertakes to procure the full and prompt performance by Astivenca of all their respective obligations under the [Charterparties] and this Assignment."
The "AMETHYST" (in April 2008) and the "TURQUOISE" (in July 2008) were duly delivered to Marina and Astivenca. CH, Marina and Astivenca entered into the First Supplemental Agreements dated 5 th May 2009, supplemental to the Charterparties and the Protocol, varying the hire rates. The vessels were returned to CH in January 2013.
CH commenced these proceedings by claim form dated 17 th July 2013.
The Services Contract
Astivenca operated also as a ship repair yard. On 14 February 2008 Astivenca and Petroleo entered into a Services Contract under which Astivenca agreed to provide and operate vessels in connection with Petroleo's off-shore exploration and production activities ("the Services Contract"). This followed upon a tender process which had commenced in late 2007. The services were to include the provision of two anchor handling tugs and supply vessels ("AHTS vessels") and one platform supply vessel. The tender process was only open to Venezuelan companies.
The Services Contract was initially for the provision of two AHTS vessels and one platform supply vessel for an initial period of 3 years, extendable by up to 2 years. The initial service period commenced on 17 th April 2008, thus expiring on 17 th April 2011. The daily rate was over US$70,000.
Clause 12 of the Services Contract provided (translated from Spanish):
"TWELFTH – RESPONSIBILITIES
The parties are responsible for the duties and obligations assumed by each one of them towards the other pursuant to the contract.
1. On behalf of [Petroleo]
[Petroleo] shall respond to [Astivenca] for any debt, claim, suit, obligation, legal action and ruling of any nature arising out of, or in connection with the Service, only when attributable to [Petroleo], its employees, agents or both in the execution of the Service, damage or loss caused to [Astivenca] or third parties…"
Clauses 7 and 31 of the Services Contract provided (translated from Spanish):
" SEVENTH – DISPUTE RESOLUTION
In case disputes arise from the performance or interpretation of this CONTRACT, THE PARTIES shall make their best efforts to reach an amicable solution. In case an agreement cannot be reached between the REPRESENTATIVES of THE CONTRACTOR and THE COMPANY within thirty (30) working days, the dispute shall be submitted by a Director of THE CONTRACTOR to the highest level of managerial authority of THE COMPANY's Contracting Function, for consideration and resolution. In case the dispute cannot be resolved at this level, the President of THE CONTRACTOR shall submit it to the Director responsible for THE COMPANY's Contracting Function to resolve it and, if the dispute or difference were to persist, THE PARTIES may submit such disputes to the jurisdiction of the Courts of the Bolivarian Republic of Venezuela in accordance with Venezuelan laws. …
THIRTY-FIRST – COPIES, APPLICABLE LAW, EXCLUSIVE JURISDICTION.
This CONTRACT is issued in two (2) identical copies for a single purpose and shall be governed by and interpreted in accordance with Venezuelan laws. The parties choose and consent to the exclusive jurisdiction … of the courts of the City of Cumana, State of Sucre, to the exclusion of any other."
Astivenca's Venezuelan law expert, Mr Bentata, proposes an alternative translation of the second sentence of Clause 31 as follows:
" The parties select as special domicile the city of Cumana, State of Sucre, and declare to submit to the jurisdiction of its courts to the exclusion of all others."
On 30 th October 2008 Petroleo and Astivenca concluded Addendum No. 1 to the Services Contract, expanding the scope of the contract to include an additional AHTS vessel. In May 2011 Petroleo and Astivenca concluded Addendum No. 2, extending the term of the Services Contract by nine months to 10 th January 2012.
Under the Services Contract between April 2008 and January 2012 Astivenca provided Petroleo with eight vessels in total. The first three vessels supplied (in April 2008) were "NORSEMAN", "NOBLEMAN" and "AMETHYST". Astivenca (allegedly unilaterally) withdrew "NORSEMAN" and "NOBLEMAN" on 10 th September 2008, without tender of immediate replacements. Petroleo contends that this withdrawal caused it significant losses. "TURQUOISE" was supplied in November 2008 as a substitute for "NOBLEMAN".
"AMETHYST" and "TURQUOISE" were sourced by Astivenca from Marina,...
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