Golden Ocean Group Ltd v Humpuss Intermoda Transportasi Tbk Ltd and Another
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Popplewell |
| Judgment Date | 16 May 2013 |
| Neutral Citation | [2013] EWHC 1240 (Comm) |
| Docket Number | Case No: 2013-FOLIO 126 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 16 May 2013 |
[2013] EWHC 1240 (Comm)
The Hon. Mr Justice Popplewell
Case No: 2013-FOLIO 126
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building
Fetter Lane
London, EC4A 1NL
Steven Gee QC & Tom Whitehead (instructed by Brookes & Co) for the C laimant
Nicholas Craig (instructed by Lipman Karas LLP) for the Second Defendant
Hearing dates: 26 April, 1 May 2013
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.
This is an application for permission to serve an arbitration claim form out of the jurisdiction on the First and Second Defendants and for an interim "anti-arbitration" injunction to restrain the Second Defendant from pursuing arbitration proceedings in Singapore. The application is made ex parte on notice so far as concerns the First Defendant, who did not appear and was not represented, but inter partes so far as concerns the Second Defendant.
The application arises out of a dispute as to which of the Defendants was party as disponent owner to a charterparty under which the vessel "BARITO" ("the Vessel") was chartered to the Claimant in March 2008 for 11 to 13 months.
The Claimant ("Golden Ocean") is a Norwegian company based in Bermuda, which is involved in dry bulk shipping worldwide. The First Defendant ("HIT") is the ultimate parent company of the Humpuss group of companies. It is a publicly traded company registered in Indonesia and managed from Jakarta. According to its 2008 accounts its business mainly involved transporting LNG, oil, chemicals, containers and other cargoes, as well as providing crewing and management services to vessel owners. Part of the group's business relating to ship owning and chartering was carried on by a wholly owned subsidiary, Humpuss Sea Transport PTE Limited ("HST"), a company incorporated and managed in Singapore. HST's principal activity, according to the 2008 accounts, was time chartering vessels. HST had a number of wholly owned operating subsidiaries which included the Second Defendant ("Genuine") and Heritage Maritime Limited ("Heritage"). Genuine is a Panamanian company whose business is described in the 2008 accounts as dry bulk transportation services. Since January 2012 HST has been under the control of liquidators appointed by the High Court of Singapore, as therefore have its subsidiaries, including Genuine.
The fixture of the Vessel was recorded in an email dated 18 March 2008 from the owner's brokers, Simpson Spence and Young ("SSY"), to Golden Ocean and HIT. The fixture was negotiated on Golden Ocean's behalf by Michael Joergensen in its chartering department, and on behalf of owners by Bobby Andikha, who was a director of both HIT and HST. Mr Joergensen's evidence is that Golden Ocean had had an unhappy experience with a previous fixture of a vessel from Heritage, the "Mahakam"; and that as a result, both he and Mr Zorn, the managing director of Golden Ocean in Singapore, made clear to Mr Drachmann of SSY during negotiations that they were only prepared to contemplate another fixture if it was with HIT itself as a listed company. The fixture recap email was addressed by SSY to Mr Andikha at HIT. A subsequent email from Mr Drachmann appears to confirm that he regarded his instructions as coming from Mr Andikha acting on behalf of HIT.
The recap set out some of the terms and concluded by providing that otherwise the terms were to be those of the last charter "between Owners and Chrts with logical changes." This was a reference to the Mahakam charter under which Heritage was named as the disponent owner. The charter contained at clause 17 a provision that any dispute be referred to arbitration in London and that the charter was to be governed by English law.
The Vessel was delivered into the charterparty on 2 August 2008. During the currency of the charter, hire was paid by Golden Ocean to an account in the name of Genuine, pursuant to details provided to Golden Ocean by SSY. On a number of occasions letters of indemnity were provided by Golden Ocean to enable cargo to be discharged in the absence of bills of lading. These were made out in favour of Genuine, pursuant to wording in that form again provided by SSY.
In early 2009 Golden Ocean alleged that the Vessel was off hire. The Vessel was redelivered in March 2009, some 4 months before the expiry of the charterparty period. Golden Ocean has made claims totalling approximately US$1.8 million in respect of overpaid hire and the value of bunkers remaining on board on redelivery. These claims are made against HIT whom Golden Ocean contends is the disponent owner under the charterparty. Cross claims have been made by Genuine for damages for early redelivery of the vessel in a sum exceeding US$ 6 million. This claim is made against Golden Ocean on the basis of Genuine's case that it, not HIT, was the disponent owner under the charterparty.
After the Vessel had been redelivered, on 5 June 2009 Golden Ocean commenced Rule B attachment proceedings in New York against Genuine. These were prepared by Golden Ocean's FD&D Club, Nordisk Defence Club (Singapore) Pte Ltd ("Nordisk"), on the basis of documents provided by Golden Ocean, and in particular a draft working copy of the charterparty which had been provided to Golden Ocean by SSY under cover of an email of 26 May 2009. This named Genuine as the owner. There was also an unsigned addendum extending the laycan of the vessel which named HST as the owner. It is Golden Ocean's case that Nordisk was in error in identifying Genuine as the contracting owner, and this error was caused by Golden Ocean having been sent the draft working copy of the charterparty by SSY, after the charterparty had expired, which identified Genuine as the owner.
On 18 June 2009 Nordisk, acting on behalf of Golden Ocean, wrote to Genuine advancing claims against Genuine and making a demand for arbitration in London. Again this is said to have been an error by Nordisk consequent upon the draft working copy of the charter sent by SSY which identified Genuine as the owner. The notice was rejected by Thomas Cooper acting on behalf of Genuine on grounds that it had not been properly served.
On 22 September 2009 a settlement meeting took place between Golden Ocean and Genuine in relation to the underlying disputes but no agreement was reached. By a letter of 23 September 2009, Nordisk gave a second notice of commencement of London arbitration against Genuine under the charterparty. Shortly thereafter Genuine commenced proceedings against Golden Ocean in Indonesia in support of its claim for early redelivery and arrested a vessel chartered by Golden Ocean, the "Golden Joy", in order to secure that claim. This gave rise to further meetings, which culminated in an addendum dated 8 March 2010 ("the Addendum") being signed by Golden Ocean and Genuine. The Addendum, which is at the heart of the dispute on the current application, was in the following terms:
"Addendum to the Charterparty
This agreement is entered into this 8th day of March 2010 between Genuine Maritime Ltd., SA of the first part and Golden Ocean Group Limited of the second part.
WHEREAS
1. The parties entered into a Charterparty for the "BARITO" on 18 March 2008.
2. Owners have commenced legal proceedings in Indonesia in respect of disputes arising out of or in connection with the Charterparty.
3. Charterers have commenced arbitration proceedings in London in respect of their claims/counterclaims and have made an application to the English High Court of Justice to have their arbitrator appointed as the sole arbitrator.
4. The parties now wish to have all disputes determined in arbitration in Singapore and thus wish to amend the arbitration clause in the Charterparty.
NOW IT IS HEREBY AGREED
1. Clause 17 of the Charterparty be amended ab initio so as to provide for all and any disputes arising under the Charterparty to be determined by arbitration in Singapore under English law with each party appointing their own arbitrator, and those two arbitrators appointing a third arbitrator as umpire if they consider it necessary.
2. All and any current legal proceedings in Indonesia in respect of disputes under the Charterparty as may have been brought by Genuine Maritime Ltd., SA against Golden Ocean Group Limited and/or any other company in the same beneficial or associated ownership shall be discontinued forthwith on terms that there be no order as to costs. To the extent necessary, Golden Ocean Group Limited shall consent to such terms.
3. All and any current arbitration and court proceedings in London/England in respect of disputes under the Charterparty as may have been brought by Golden Ocean Group Limited against Genuine Maritime Ltd., SA shall be discontinued forthwith on terms that there be no order as to costs. To the extent necessary, Genuine Maritime Ltd., SA shall consent to such terms."
The Addendum was signed on behalf of Golden Ocean by Mr Flaaten, a senior chartering manager. His evidence is that he signed the Addendum relying on the draft working copy of the charter which had been provided by SSY and assumed that Genuine had been the counterparty to the fixture agreed on 18 March 2008 on that basis.
It is Golden Ocean's case that the original fixture was with HIT, and that clause 1 of the Addendum (but not the remainder) is of no effect as a matter of construction/implied condition and/or is void for mutual mistake. Accordingly it is Golden Ocean's case that it has never agreed to a fixture with Genuine and has never...
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