Taxidiotiki-Touristiki-Nautiliaki Ltd (trading as Aspida Travel) v The Owners and/or Demise Charterers of the Vessel ‘Columbus’
| Jurisdiction | England & Wales |
| Judge | Mr Admiralty Registrar Davison |
| Judgment Date | 18 February 2021 |
| Neutral Citation | [2021] EWHC 310 (Admlty) |
| Date | 18 February 2021 |
| Court | Queen's Bench Division (Admiralty) |
| Docket Number | AD-2020-000169 |
[2021] EWHC 310 (Admlty)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
ADMIRALTY COURT (QBD)
Royal Courts of Justice
Rolls Building, Fetter Lane, London EC4A 1NL
Mr Admiralty Registrar Davison
AD-2020-000169
AD-2020-000176
Mr Benjamin Joseph (instructed by Roose & Partners) for the Claimants
Ms Celine Honey (instructed by Watson Farley & Williams LLP) for Carnival Plc
Mr Bibek Mukherjee (instructed by Salvus Law Ltd) for the Salvus Claimants
Hearing date: 9 February 2021 (by Microsoft Teams)
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.
By claim forms issued on 13 November and 20 November 2020, Aspida Travel have claimed against the proceeds of sale of the vessels “Vasco Da Gama” and “Columbus”. The claims are respectively for €275,863.00 and €123,884 in respect of travel agency services for the transport of crew to and from the vessels. The period during which such services were provided was from 1 January 2020 to 31 July 2020. Some, though not all, of the costs were incurred in repatriating crew following the lay-up of the vessels in Tilbury due to the pandemic. By Forms ADM13 dated 11 December 2020, Aspida has claimed judgment in default. Those applications were served on the other persons claiming against the vessels. Objection has been taken to the claims by a group of claimants represented by Salvus Law, (“the Salvus Claimants”), and by the former owners of the vessels, Carnival Plc (“Carnival”). The objection to the claims is that they do not meet the requirements of section 21 of the Senior Courts Act. Section 21(4) is in the following terms:
“In the case of any such claim as is mentioned in section 20(2)(e) to (r), where—
(a) the claim arises in connection with a ship; and
(b) the person who would be liable on the claim in an action in personam (“the relevant person”) was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship, an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against—
(i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise; or
(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it.”
In the context of this case, in order for the court to have jurisdiction over the claims, the “relevant person”, i.e. the person who would be liable in personam on the claims must have been the charterer at the time when the cause of action arose and the demise charterer at the time when the action was brought. The vessels were demise chartered to Lyric Cruise Ltd (“Columbus”) and Mythic Cruise Ltd (“Vasco Da Gama”) to whom the travel agency services were provided and the invoices from Aspida rendered. But on 7 October 2020 (Mythic) and 9 October 2020 (Lyric), the charters were terminated. The claims were brought more than a month later. It follows that, prima facie, the second requirement of the section was not made out. By the time that the claims were brought, Mythic and Lyric were no longer the demise charterers.
To this basic and fundamental objection, Aspida had a number of answers – none of which was, in my judgment, made out. In the interests of economy, I will set out compendiously both Aspida's attempts to meet the objection and the reasons why I have rejected those attempts.
First, Aspida submitted that it was not open to Carnival to terminate the demise charters when they did and that the steps they took to terminate were legally ineffective to do so.
Aspida said that it was not open to Carnival to terminate because that was contrary to representations that they (Carnival) had made to Andrew Baker J on 2 September 2020, which was the date of the order for sale of the vessels pendente lite. Aspida relied upon the wording of an email sent on 10 September 2020 by Mr Fidoe of Watson Farley Williams (“WFW”), who was acting for Carnival, to Mr Hailey, who was acting for various claimants against the vessels. The email stated as follows:
“You refer to CPR 61.10(2) which allows the court to make a deadline for the time in which claims can be brought against the proceeds of sale. It was made clear during the hearing that the bareboat charters would remain in full force and effect for the benefit of all of the claimants and potential claimants to allow them to bring claims. That is clear from the witness statement and the underlying documents. The discretionary power you refer to was one that we did not to seek the Court to invoke given the underlying reasons for the application. Whilst this might prejudice your clients' claim, any other approach would prejudice the remaining creditors.
Once the vessels are sold, the bareboat charters will be automatically terminated as the subject matter will neither be in the possession of the bareboat charterers or the registered owners. There is, therefore, an absolute cut-off date up to which claims can be brought; ‘quasi’ in rem claims require the bareboat charterer to be in possession of the vessel at the time the claim is issued.”
More recently, Mr Handley of WFW stated that the demise charter agreements had “remained in full force and effect during the period of arrest”; (see witness statement dated 20 November 2020). The period of arrest was from 21 August 2020 to 16/22 October 2020 – so this statement was in conflict with the fact that the demise charters had been terminated on 7 & 9 October 2020.
As a general proposition, the law frowns upon a person who both “approbates and reprobates”. “A man cannot adopt two inconsistent attitudes towards another:...
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