Galaxia Maritime S.A. v Mineralimportexport (Eleftherios)
|England & Wales
|LORD JUSTICE EVELEIGH,LORD JUSTICE KERR,SIR GEORGE BAKER
|18 December 1981
|Judgment citation (vLex)
| EWCA Civ J1218-3
|Court of Appeal (Civil Division)
|18 December 1981
 EWCA Civ J1218-3
Lord Justice Eveleigh
Lord Justice Kerr
Sir George Baker
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
MR H.B.E. EDER (instructed by Messrs Richards Butler) appeared on behalf of the Applicants.
MR P. SIMONS (instructed by Messrs Middleton Potts & Co.) appeared on behalf of the Respondents.
This is an appeal by third parties in Mareva proceedings from a refusal by Mr Justice Neill to lift an injunction.
The Plaintiffs are a company incorporated in Switzerland; the Defendants are a Panamanian trading corporation. The Plaintiffs claim against the Defendants a sum of about 400,000 U.S. dollars for demurrage under a charterparty. They are the owners of a vessel, the "Grecian Legend", which was on charter to the Defendants, and it would appear that they have prima facie at any rate, a good claim against the Defendants for that sum. They obtained from Mr Justice Neill a Mareva injunction against the assets of the corporation in this country.
The third party are the owners of a vessel the M.V. "Eleftherios" which, at the relevant moment, had on board a cargo of 11,000 metric tons of coal at the Port of Barry in South Wales.
Again it would appear (at least for the purpose of this Judgment I will assume) that the coal was the property of the Defendants, having been loaded under the terms of an agreed contract with the sellers, the National Coal Board.
Mr Justice Neill granted a Mareva injunction, as I have said, and an important term of that injunction for the purposes of this appeal is this: "…that the Defendants by themselves their employees or agents or otherwise howsoever be restrained and an injunction is hereby granted restraining them from disposing of or dealing with their assets within the jurisdiction or from removing such assets from the jurisdiction and in particular the cargo loaded on board the M.V. 'Eleftherios' so as to reduce the value of those assets below the sum of U.S. dollars 413,403.47 until trial or further order".
There was also, as one would expect, incorporated into that order an undertaking by the Plaintiffs: "…. to abide by any order which the Courts may hereafter make as to damages should the Defendants suffer any by reason of this order which in the opinion of the Court the Plaintiffs ought to pay", and, what is important, "to pay the actual income lost to the Port Authority controlling the Port of Barry in South Wales…and to pay the reasonable costs of other third parties in complying with this order".
That injunction having been made, the owners of the "Eleftherios" applied to this Court, and at that hearing the Plaintiffs gave a further undertaking that they would provide a guarantee in respect of any loss or damage suffered by the third parties as a result of the order. However that guarantee had not been forthcoming by the time we heard the appeal, but again for the purposes of my Judgment I will assume that that guarantee had in fact been produced.
This matter was heard by this Court yesterday, and at about quarter-past four we lifted the injunction and stated that our reasons would be given today.
The vessel, the "Eleftherios", was under a voyage charter and we were told that unless the vessel sailed by 2100 hours on the 17th December it would not be able to sail until just before Christmas.
The learned Judge was referred to the case of reported in . That was a case of a vessel under time charter and a Mareva injunction was granted. In that case Mr Justice Robert Goff obtained from the Plaintiffs an undertaking to indemnify the Port Authority against any loss which they might sustain as a result of the injunction, which had the effect of preventing the movement of the vessel.
It does not appear that Mr Justice Neill had his attention specifically drawn to the fact that that case involved a vessel on time charter. Furthermore it does not appear from the report that the owners of the vessel had made any application. Moreover, insofar as the order impeded the trading activities of the Port Authority it is very important to appreciate that the Port Authority was present, if not at the application initially at least at the end of the proceedings, and was quite content with an undertaking being given. So that that case provides a little guide, as it turns out, to the facts of the case.
Only yesterday this Court, in a case which was called , drew attention to the need to pay particular regard to the extent to which the freedom of action of third parties would be affected by a Mareva injunction.
The effect of this present injunction, insofar as the owners of the "Eleftherios" are concerned, is to interfere with their trading assets. Mr Simons has submitted to this Court that that is a matter which should not affect the final outcome because, as he says, his clients have given a guarantee. For myself I do not believe that when the third party protests, the fact...
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