Times Trading Corporation v National Bank of Fujairah (Dubai Branch)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cockerill |
| Judgment Date | 05 May 2020 |
| Neutral Citation | [2020] EWHC 1078 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2020-000136 |
| Date | 05 May 2020 |
[2020] EWHC 1078 (Comm)
Mrs Justice Cockerill DBE
Case No: CL-2020-000136
IN THE HIGH COURT OF JUSTICE
OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
IN THE MATTER OF AN ARBITRATION CLAIM
Royal Courts of Justice,
Rolls Building
Fetter Lane,
London,
EC4A 1NL
Mr David Lewis Q.C. and Ms Hannah Glover (instructed by Reed Smith LLP) for the Claimant
Mr Steven Berry Q.C and Mr John Robb (instructed by Campbell Johnston Clark Limited) for the Defendant
Hearing date: Tuesday 24 March 2020
Draft Judgment sent to parties: 23 April 2020
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.
Introduction
This is the Claimant's (“Times”) application for an interim anti-suit injunction restraining National Bank of Fujairah (Dubai Branch) (“NBF”), from prosecuting or continuing proceedings it has commenced against Times in the High Court of the Republic of Singapore. The basis for the application is that such proceedings have been commenced in breach of NBF's contractual obligation to arbitrate in London.
NBF is said to be the holder of 27 Bills of Lading issued in respect of cargo shipped on the MV “ARCHAGELOS GABRIEL” (the “Vessel”), which cargo was discharged against letters of indemnity (“LOIs”) between 10 and 20 June 2018. NBF pursues misdelivery claims on the basis that it was holder of the Bills of Lading. The Bills of Lading, as NBF accepts, contain a binding clause referring disputes to London arbitration.
The dilemma arising in this case concerns the identity of NBF's contractual counterparty (and in particular whether Times was the bareboat charterer of the Vessel), the application of the Article III Rule 6 time-bar, as between Times and NBF, and the proceedings now pending both here and in Singapore.
No substantive step has yet been taken in the proceedings in Singapore following service of the claim, and NBF has previously confirmed to the High Court of Singapore (in terms the significance of which is contentious) that it intends to stay the claim against Times in favour of London arbitration, though no such application has been issued to date. The Singapore High Court has suspended directions which it had previously made for the filing of pleadings or any stay application in Singapore, while making clear that this does not prohibit NBF from filing its Statement of Claim in Singapore if so advised.
Times' application for an anti-suit injunction previously came before Andrew Baker J on an urgent without notice basis on 10 March 2020. Andrew Baker J adjourned the application to be heard formally on notice to NBF; and granted Times permission to serve the proceedings out of the jurisdiction on NBF's lawyers in Singapore. His concern, aside from urgency, was as to issues of delay and the question of treatment of the time-bar defence which lies at its heart.
I heard argument on this application remotely on 24 March, and shortly thereafter communicated my decision to the parties, with these fuller reasons to follow.
Background
The facts
On or about 11 May 2018, the MV “ARCHAGELOS GABRIEL” loaded 55,100 MT of steam (non-coking) coal of Indonesian origin (the “Cargo”) in bulk in East Kalimantan, Indonesia. The Vessel is owned by Rosalind Maritime LLC (“Rosalind”).
27 Bills of Lading were issued (the “Bills of Lading”) on the Congenbill 1994 form on or around 11 May 2018 on behalf of the master. As noted above, NBF claims to be the lawful holder of 27 Bills of Lading in respect of cargo shipped on the Vessel.
The Cargo was discharged between 10 and 20 June 2018 at Navlakhi Port, India without production of the original Bills of Lading against LOIs.
The Bills of Lading contain a General Paramount Clause pursuant to which it is common ground, for present purposes, that the 12-month time bar under Article III Rule 6 applies to NBF's misdelivery claims.
It is more or less common ground that the Bills of Lading also incorporate an arbitration clause requiring disputes to be submitted to London arbitration, that that clause is found in a voyage charterparty between Trafigura Maritime Logistics Pte Ltd and Harmony Innovation Shipping Pte Ltd (“Harmony”) dated 25 April 2018 and that it provides:
“54 LAW & ARBITRATION
54.1 This Charterparty, any question regarding its validity, existence or termination, and any noncontractual obligations arising from or connected with it shall be governed by and construed in accordance with English law.
54.2 Any dispute arising out of or in connection with this Charterparty (including any question regarding its validity, existence or termination and any non-contractual obligations arising from or connected with it) shall be referred to arbitration in London before three arbitrators in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment thereof…”.
(emphasis added)
Certainly no other potential clause has been identified.
On that basis, NBF was required to bring “ suit” against the carrier for misdelivery by 20 June 2019, at the latest.
NBF, through its Singapore solicitors, Rajah & Tann Singapore LLP (“R&T”), asserted a claim for misdelivery against the carrier, which was addressed to Vessel's registered owner, Rosalind Maritime LLC (“Rosalind”) “c/o Times Navigation Inc.” on 28 December 2018. Waterson Hicks replied that day. The reply stated that they acted for Owners, and took no issue with the addressing of the claim. NBF says that response implied, and led NBF to believe, that Rosalind was the carrier.
No immediate favourable response to the claim was received and on 2 January 2019 NBF issued an in rem Writ of Summons in the High Court of the Republic of Singapore under case number HC/ADM 2/2019 (the “Singapore Proceedings”). That writ was addressed in standard form to “Owners and/or Demise Charterers and/or other persons interested in …” the Vessel. It was issued by NBF as “ lawful holders and/or indorsees of the Bills of Lading” and claimed “ against the Defendants as carriers… (a) Damages for breach of the contract(s) of carriage contained in and/or evidenced by the Bills of Lading…”. There were alternative claims in tort and bailment.
With the spectre of arrest in the air, given that Harmony were concerned about this obvious possibility, an Order was obtained by Harmony requiring Trafigura Pte Ltd (“Trafigura”) to provide full security for NBF's claims. Such security was provided on 11 February 2019; Trafigura caused a guarantee to be issued by Sumitomo Mitsui Banking Corporation Europe Limited (“SMBC”) to NBF in the sum of US$4.65m (“the Guarantee”).
On 15 February 2019 Trafigura, Times, Rosalind and Trafigura Maritime Logistics Pte Ltd entered into a Claims Handling and Cooperation Agreement (“the Cooperation Agreement”), pursuant to which Trafigura became responsible for handling NBF's misdelivery claims on behalf of Rosalind and Times, which is described in the agreement as the bareboat charterer of the Vessel. Neither that agreement nor the operative charterparty was provided to NBF at this point.
On 4 June 2019, and thus within 1 year of discharge, NBF commenced London arbitration proceedings against the carrier for misdelivery by a notice addressed to “Rosalind Maritime LLC, Owners of the Vessel “Archagelos Gabriel” c/o Times Navigation Inc”. Also within the 1-year limit Holman Fenwick Willan (“HFW”) replied, saying that they acted for Trafigura “ who have the conduct of the defence of your clients' alleged claims”. The letter did not identify exactly for whom Trafigura acted. The letter did not mention any Bareboat Charter. It said that their clients proposed to appoint an arbitrator, while in general terms reserving rights in respect of the validity of the notice of arbitration. NBF say HFW acted presumably on behalf of and with authority from Rosalind and Times under Clause 2 of the Claims Handling and Cooperation Agreement.
After the 1 year time limit had expired, on 10 July 2019, Reed Smith, stating that they acted for “Owners” appointed an arbitrator for the carrier; and then, on 19 July 2019, sent a letter indicating that the Vessel was under Bareboat Charter to Times when the Bills of Lading were issued:
“We note that the Notice of Arbitration purports to commence an arbitration against Rosalind. However at the material time the Vessel was bareboat chartered to Times Trading Corp… The Bills of Lading were not issued by Rosalind but were issued by Times. Accordingly, we do not accept the validity of the Notice of Arbitration and our client will contend that the Notice of Arbitration purports to start an arbitration against the wrong party.”
NBF sought unsuccessfully in correspondence to obtain disclosure and particulars of the alleged bareboat charterparty. A copy of the alleged Bareboat Charter was ultimately disclosed on 9 March 2020 on Times' application in this action.
Discussion as to the terms of the security ensued. On 7 November 2019, at NBF's request, Reed Smith on behalf of Trafigura confirmed that the Guarantee was to be read such that “ references to the word “Owners” are a reference to the legal entity being the “Carrier” (as determined by the competent Tribunal and/or on appeal by the competent Courts) under the Bills of Lading”.
Following this debate, on 9 November 2019, NBF served on the Vessel the in rem Writ of Summons in the Singapore...
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