Intraco Ltd v Notis Shipping Corporation (Bhoja Trader)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DONALDSON |
| Judgment Date | 19 June 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0619-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0257 |
| Date | 19 June 1981 |
[1981] EWCA Civ J0619-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (INTERLOCUTORY LIST)
Royal Courts of Justice,
Lord Justice Donaldson
Lord Justice Ackner
81/0257
1981 I. No. 2693
MR R. AIKENS (instructed by Messrs. Ince & Co.,) appeared on behalf of the Appellants.
MR D. DONALDSON (instructed by Messrs. Holman, Fenwick & Willan) appeared on behalf of the Respondents.
The judgment which I am about to give is that of the Court.
The dispute between the parties concerns the sale of a ship, the M.V. "Notis", now re-named the "Bhoja Trader". The Sellers were Notis Shipping Corporation of Liberia, a one-ship company managed from Greece. The Buyers were Intraco Limited, a Cayman Island company managed from Ceylon. The agreement for sale was made at the beginning of April and was based upon the Norwegian Sale Form of Contract. Delivery took place on 16th April at Calcutta.
This form of contract includes in clause 9, lines 82–89, a guarantee that the vessel at the time of delivery is free from all encumbrances and maritime liens or other debts whatsoever. It goes on to provide an indemnity in respect of the consequences of any such claim incurred prior to the time of delivery.
Clause 15 is an arbitration clause which the parties amended to provide for English law to apply and for London Arbitration.
The agreed price was US $810,000. US $41,000 had been paid as a deposit, US $369,000 was payable in cash on delivery and the balance of US $400,000 was payable with in 90 days of delivery by means of a bank guarantee to be given by the London branch of Banquede l'Indochine et de Suez ("the bank").
Shortly after delivery, the vessel was arrested in Calcutta, and the purchasers had to provide security amounting to US $200,000 to obtain her release. The validity of the arrest was challenged in the Indian Courts, which have held that it was not justified, save to the extent of the relatively small amount of US $4,500. However, the decision of the Appeal Court to this effect is under appeal to the Supreme Court, and no decision has yet been given. The provision of the security took a little time, and the purchasers claim that this led to their suffering large losses due to the cancellation of cargo bookings for the vessel. Arbitration proceedings have been or are about to be begun in London by the purchasers against the sellers alleging breach of the sale contract and claiming damages.
The Sellers have no assets in this country other than their righ to under the bank guarantee. Accordingly, the purchasers applied ex parte to Mr Justice Robert Goff for an injunction restraining the Sellers from calling upon the bank to make payment. This injunction was granted in order to hold the position until it could be considered inter partes.
The inter partes proceedings were heard by Mr Justice Staughton, and it is against his decision that the purchasers appeal and the Sellers cross-appeal.
Mr Justice Staughton refused to continue the injunction restraining the Sellers from calling upon the bank to make payment under the guarantee, but granted a Mareva injunction restraining the Sellers "Until further order from removing from the jurisdiction or otherwise disposing of any of their assets and in particular moneys payable under a guarantee given by the Banque de 1' Indochine et de Suez dated 14th April 1981 in favour of the Defendants, save insofar as the same exceed...
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