Specialised Vessel Services Ltd v MOP Marine Nigeria Ltd
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Calver |
| Judgment Date | 18 February 2021 |
| Neutral Citation | [2021] EWHC 333 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2021-000034 |
| Date | 18 February 2021 |
[2021] EWHC 333 (Comm)
THE HONOURABLE Mr Justice Calver
Case No: CL-2021-000034
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice,
Rolls Building, Fetter Lane,
London, EC4A 1NL
Saira Paruk (instructed by Winston & Strawn London LLP) for the Claimant
No one in attendance for the Defendant
Hearing dates: 18 February 2021
Approved Judgment
Application
This is the Claimant ( SVS)'s application pursuant to s.37 of the Senior Courts Act 1981 for an order that the Defendant ( MOP) be subject to a final injunction (a) restraining it from pursuing the claims it has made against SVS in proceedings before the Federal High Court of Rivers State, Nigeria (“the Nigerian Proceedings”) and (b) requiring MOP to take immediate steps to discontinue the Nigerian Proceedings.
SVS also seeks a declaration that
i. MOP is obliged to arbitrate all disputes relating to the Bareboat charter between the parties dated 23 January 2019 (“the Bareboat Charter”) in line with clause 30 thereof;
ii. MOP is obliged to bring any challenge to the jurisdiction of the arbitral tribunal or the validity of the arbitration agreement before the Tribunal or before this Court; and
iii. The Nigerian Proceedings against SVS constitute a breach of the Bareboat Charter and in particular the arbitration agreement therein.
MOP was on notice of this hearing but it indicated through its Nigerian lawyer that it does not intend to play any part in these proceedings or in the arbitration referred to below. In particular, by email dated 17 February 2021 MOP's Nigerian lawyer, Reiben E. Wanogho of RE Wanogho & Co, said this:
“We write to acknowledge receipt of your mails and to reiterate our earlier position conveyed to you vide our letters of 1st and 11th February, 2020 as well as our mails to you. In our email of 13th February, 2020, we stated our position clearly that we do not intend to participate in any shape or form in the proceedings before the High Court, Commercial Court, Queen's Bench Division as the proceedings thereat are a ploy to completely undermine the two suits instituted before the Federal High Court, Port Harcourt, Nigeria by our client [MOP]. Our client's position has not changed. It is not our client's desire or intention to participate in the proceedings as same is in contempt of the Federal High Court.
Our said client is desirous of continuing to pursue its claims before the Federal High Court here in Nigeria.”
Background
(i) Commercial context
The background to this application is helpfully summarised in the first witness statement of Ben Bruton dated 26 th January 2021 and it is as follows.
At all material times, SVS was the owner of the “SVS COCHRANE” (“the Vessel”). By a Bareboat Charter on an amended BARECON 2001 form dated 23 January 2019 (“the Bareboat Charter”), the Vessel was chartered to MOP.
On 9 October 2019, the Vessel was involved in a collision with a tugboat (the “Chidiebube”) in waters close to Bonny Island in Nigeria. As a result of the collision, the Vessel was grounded and it has not been in operation since the collision.
SVS has claims under the Bareboat Charter against MOP arising from the collision, including:
a) A claim for outstanding hire in the sum of US$1,209,137.50 plus late payment interest, under clause 11.
b) Loss equivalent to the value of the Vessel
c) Additional damages caused by the collision and grounding of the Vessel.
d) Loss caused by MOP's failure to keep the Vessel insured, as MOP was contractually obliged to do.
By a letter dated 6 January 2020, SVS's solictors sent a letter of claim to MOP indicating that if required, arbitration would be commenced in accordance with clause 30 of the Bareboat Charter.
(ii) Agreement to arbitrate in London pursuant to English law
Clause 30 of the Bareboat Charter provides as follows:
“(a) This Contract shall be governed by and construed in accordance with English law and any dispute arising out of or in connection with this Contract shall be referred to arbitration in London in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause. The arbitration shall be conducted in accordance with the London Maritime Arbitrators Association (LMAA) Terms current at the time when the arbitration proceedings are commenced.
The reference shall be to three arbitrators. A party wishing to refer a dispute to arbitration shall appoint its arbitrator and send notice of such appointment in writing to the other party requiring the other party to appoint its own arbitrator within 14 calendar days of that notice and stating that it will appoint its arbitrator as sole arbitrator unless the other party appoints its own arbitrator and gives notice that it has done so within the 14 days specified. If the other party does not appoint its own arbitrator and give notice that it has done so within the 14 days specified, the party referring a dispute to arbitration may, without the requirement of any further prior notice to the other party, appoint its arbitrator as sole arbitrator and shall advise the other party accordingly. The award of a sole arbitrator shall be binding on both parties as if he had been appointed by agreement. Nothing herein shall prevent the parties agreeing in writing to vary these provisions to provide for the appointment of a sole arbitrator. In cases where neither the claim nor any counterclaim exceeds the sum of USD 50,000 (or such other sum as the parties may agree) the arbitration shall be conducted in accordance with the LMAA Small Claims Procedure current at the time when the arbitration proceedings are commenced….”
(iii) The Nigerian proceedings
Despite the terms of the arbitration clause, MOP has commenced two separate claims filed (claim numbers FHC/PH/CS/248/2019 and FHC/PH/CS/58/2020) which together are the “Nigerian Proceedings”.
MOP issued proceedings in the Federal High Court of Rivers State of Nigeria, in the Port Harcourt Judicial Division on 22 November 2019 (with claim number FHC/PH/CS/248/2019), but SVS was only served with the proceedings in Mauritius on 21 January 2020. The claim brought by MOP was for negative declarations in relation to MOP's liability under the Bareboat Charter and an injunction preventing SVS from insisting on the payment of any hire thereunder. On 4 December 2019, MOP filed a further Motion on Notice of Suit in the same claim, seeking an injunction restraining SVS from contacting MOP in relation to the payment of hire.
By the time SVS was able to instruct Nigerian lawyers, the 14 day period to respond had lapsed. Accordingly, by an application dated 10 February 2020 SVS sought an extension of time to be heard as well as an application for a stay of the Nigerian Proceedings on the basis that the matter should be referred to arbitration in London. A Memorandum of Conditional Appearance was also issued on 10 February 2020 on behalf of SVS. I am told that this is a necessary procedural step by a defendant to indicate that they are appearing in protest and wish to challenge the jurisdiction of the Nigerian Court.
On 12 February 2020, there was a hearing of MOP's application for an injunction. However, the Judge determined that SVS's applications (for a time extension and for a stay) should be given precedence and the matter was adjourned until 25 March 2020 to allow MOP to prepare a response. Although both sides filed further evidence (on 18 and 24 February 2020 respectively) the hearing scheduled for 25 March did not go ahead due to the Covid-19 pandemic. The matter was further adjourned until 25 May 2020.
The May hearing also did not go ahead due to Covid-19 and the re-listed hearing due to be on 22 September 2020 did not proceed as the Court had not resumed following the vacation. The matter was heard on 20 October 2020. At the hearing this court was told that lawyers on behalf of MOP did not deny the existence of the arbitration agreement between the parties, but argued that the court should be allowed to hear the matter in any event. Judgment has been reserved.
Following the commencement of an arbitration by SVS on 13 May 2020, MOP filed another claim (with claim no. FHC/PH/CS/58/2020). This claim was filed against both SVS and the Arbitrator, Sir Jeremy Cooke. Following an ex parte application by MOP in this matter, by an order dated 4 June 2020, the Nigerian Court granted an ex parte injunction against SVS and the Arbitrator restraining them from proceeding with the arbitration.
MOP then filed a Motion on Notice in the same case seeking continuance of the injunction and on 1 July 2020 SVS issued an application seeking the setting aside of the injunction. A hearing took place on 8 July 2020, but no representative from MOP attended. I am informed that the judge heard counsel for SVS and adjourned to consider his decision. However, by a Motion on Notice filed on 13 July 2020, MOP sought a declaration that the hearing on 8 July was unconstitutional, this application was heard on 21 July 2020. At that hearing the judge agreed with MOP that the hearing of 8 July was unconstitutional but re-heard SVS's application to dismiss the ex-parte injunction granted to MOP. The judgment was reserved. Despite having been advised by its Nigerian lawyers that it was likely to succeed on the application, by an order dated 24 July 2020, the Nigerian Court dismissed SVS's application to set aside...
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