Trafigura Maritime Logistics Pte Ltd v Clearlake Shipping Pte Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henshaw |
| Judgment Date | 26 March 2020 |
| Neutral Citation | [2020] EWHC 726 (Comm) |
| Date | 26 March 2020 |
| Docket Number | Case No: CL-2020-000159 |
| Court | Queen's Bench Division (Commercial Court) |
[2020] EWHC 726 (Comm)
THE HONOURABLE Mr Justice Henshaw
Case No: CL-2020-000159
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Ashcroft QC and Oliver Caplin (instructed by Ince Gordon Dadds LLP) for the Claimant/Applicant
Stewart Buckingham QC (instructed by Winter Scott LLP) for the Defendant/Respondent
Hearing date: 24 March 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.
| (A) INTRODUCTION | 2 |
| (B) KEY FACTS | 3 |
| (C) PRINCIPLES | 8 |
| (D) ARGUMENTS AND ANALYSIS | 9 |
| (1) Wrong defendant | 10 |
| (2) Indemnity wording not provided in time | 11 |
| (3) Separate LOI required | 12 |
| (4) Urgency | 13 |
| (5) Overall position | 15 |
| (E) CONCLUSION | 15 |
(A) INTRODUCTION
The Claimant time charterer seeks an urgent mandatory injunction compelling the Defendant voyage charterer to provide security to enable the release of the MT “ Miracle Hope” (the “ Vessel”), which is currently under arrest in Singapore. In summary, the Claimant alleges that the Defendant is contractually obliged to provide the security sought but has so far failed to do so.
Taking the view that the matter was urgent, the Claimant applied at very short notice to the Defendant, recognising that it (the Claimant) would be under a duty of full and frank disclosure to the court. The Claimant's evidence is that, following the arrest of the Vessel on 12 March 2020, and a demand made on it the same day by the head owners for security to permit the Vessel's release, the Claimant on 13 March 2020 demanded that the Defendant provide such security, threatened an application to court on Friday 20 March 2020, and served the present application on the Defendant on the morning of 23 March. The Defendant says it received notice of the present hearing at 3.28pm the same day.
In the event, the Defendant participated in the hearing before me by leading counsel, who filed a short skeleton argument shortly before the hearing. It is fair to record that counsel stated that the Defendant had, given the shortness of notice, had insufficient time properly to consider the application or to develop its response to it, and I return to this topic later.
By reason of the difficulties currently arising from the Covid-19 virus, the hearing before me (which took place from 10.30am to 12.50pm and from 2pm to 2.40pm on 24 March) was listed in the cause list to be heard in Rolls Building Court 19 as a remote hearing via telephone. I and the parties attended the hearing by telephone. The proceedings were audible (and recorded) in open court using the telephone and recording equipment in the courtroom, attended by my clerk. I indicated at the end of the morning that I proposed to grant the injunction sought, subject to provision for a parent company guarantee to be provided of the Claimant's obligations under the undertaking in damages, with reasons to follow. I heard argument and ruled on the terms of the order at 2pm. Given the current circumstances, the parties expressed a preference for a short written judgment to be delivered by the day following the hearing, rather than an oral judgment that would need to be transcribed and approved.
This court has jurisdiction over the matter by virtue of the jurisdiction agreement contained in clause 33(6) of the charterparty referred to below, pursuant to Article 25 of the Recast Brussels 1 Regulation. As such, the Claimant does not need permission to serve process out of the jurisdiction.
(B) KEY FACTS
The factual summary set out below is derived mainly from the first witness statement of Mr William Marshall, a partner in the Claimant's solicitors Ince Gordon Dadds LLP in support of the application, and the documents exhibited to it.
On 26 April 2019, the Claimant time chartered the Vessel from her owners, Ocean Light Shipping Inc (“ Ocean Light”), on an amended Shelltime 4 form.
On 21 August 2019, the Claimant voyage chartered the Vessel to Clearlake Chartering USA Inc (“ CUSA”) by way of a fixture recap incorporating an amended Shellvoy6 form (the “ Charterparty”). It will be noted that CUSA is a different entity from the Defendant. The intended voyage was from 1/2 safe ports/berths Brazil, Sao Sebastiao-Espirito range, to 1/3 safe ports/berths Far East Singapore-Japan range. On the same date, CUSA voyage chartered the vessel to Petroleo Brasileiro SA (“ Petrobras”) on terms materially similar to those contained in the Charterparty, including the indemnity provision in clause 33 to which this application relates.
The relevant bills of lading state that a cargo of 1,001,649.37 US Barrels (net) of Lula Crude Oil was shipped aboard the Vessel at Porto do Acu, Brazil, on 17 September 2019. This appears to have been pursuant to a trade, financed by Natixis, between Hontop Energy (Singapore) Pte Ltd (“ Hontop”) and Petrobras Global Trading BV PGTBV.
Clause 33(6) of the Charterparty provides:
“(6) Notwithstanding any other provision of this Charter, Owners shall be obliged to comply with any orders from Charterers to discharge all or part of the cargo provided that they have received from Charterers written confirmation of such orders.
If Charterers by telex, facsimile or other form of written communications that specifically refers to this clause request Owners to discharge a quantity of cargo either:
(a) without bills of lading and/or
(b) at a discharge place other than that named in a bill of lading and/or
(c) that is different from the bill of lading quantity then Owners shall discharge such cargo in accordance with Charterers' instructions in consideration of receiving the an LOI as per Owners' P&I Club wording to be submitted to Charterers before lifting the “subs”. Following indemnit [sic] deemed to be given by Charterers on each and every such occasion and which is limited in value to 200 per cent of the C.I.F value of the cargo on board
(i) Charterers shall indemnify Owners, and Owners' servants and agents in respect of any liability loss or damage of whatsoever nature (including legal costs as between attorney or solicitor and client and associated expenses) which Owners may sustain by reason of delivery such cargo in accordance with Charterers' request.
(ii) If any proceedings is commenced against Owners or any of Owners' servants or agents in connection with the vessel having delivered cargo in accordance with such request, Charterers shall provide Owners or any of Owners' servants or agents from time to time on demand with sufficient funds to defend the said proceedings.
(iii) If the vessel or any other vessel or property belonging to Owners should be arrested or detained, or if the arrest or detention thereof should be threatened, by reason of discharge in accordance with Charterers' instructions as aforesaid, Charterers shall provide on demand such bail or other security as may be required to prevent such arrest or detention or to secure the release of such vessel or property and Charterers shall indemnify Owners in respect of any loss, damage or expenses cased by such arrest or detention whether or not the same may be justified.
(iv) Charterers shall, if called upon to do so at any time while such cargo is in Charterers' possession, custody or control, redeliver the same to Owners.
(v) As soon as all original bills of lading for the above cargo which name as discharge port the place where delivery actually occurred shall have arrived and/or come into Charterers' possession, Charterers shall produce and deliver the same to Owners, whereupon Charterers' liability hereunder shall cease. Provided however, if Charterers shave not received all such original bills by 24.00 hours on the day 36 13 (thirteen) calendar months after the date of discharge, then this indemnity shall terminate at that time…
…
(vii) This indemnity shall be governed and construed in accordance with the English law and each and any dispute arising out of or in connection with this indemnity shall be subject to the jurisdiction of the High Court of Justice of England”
The words shown in bold above also appear in emboldened type in the original.
The Claimant's P&I Club is Steamship Mutual, a member of the International Group of P&I Clubs (“ IG”). The Charterparty did not refer to Steamship Mutual, but it did state the P&I Club of the head owner, Ocean Light, namely Gard, which is also a member of the IG.
No Club letter of indemnity (“ LOI”) wording was provided to (or requested by) CUSA or the Defendant before the ‘subs’ were lifted, i.e. before the Charterparty became an unconditional binding contract. However, on 14 October 2019 an email was sent to the Claimant by a Mr Mike Chee using the email address “ shippingops@clearlakeshipping.com”, stating in material part:
“Please may we have a copy of Owners templates for LOI wording for discharge of cargo without presentation of Original Bills of Lading and Owners combined wording for discharge without Bills of Lading and change of destination”
As noted below, Mr Chee used the same email address a few days later when writing in the name of the Defendant to give discharge instructions.
The Claimant responded the same day (14 October 2019) providing “Attached LOI wording”. The attachment was the IG's “C” wording for a standard form...
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