Western Bulk Shipowning III A/S v Carbofer Maritime Trading ApS [QBD (Comm)]
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CHRISTOPHER CLARKE |
| Judgment Date | 11 May 2012 |
| Neutral Citation | [2012] EWHC 1224 (Comm) |
| Docket Number | Case No: 2012 FOLIO 535 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 11 May 2012 |
[2012] EWHC 1224 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Christopher Clarke
Case No: 2012 FOLIO 535
Thomas Macey-Dare (instructed by Winter Scott) for the Claimants
Nigel Jacobs QC (instructed by Holman Fenwick Willan) for the Defendants
Hearing dates: 27 th April and 1 st May 2012
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.
The "Western Moscow" is a geared bulk carrier of 32,450 grt, which was completed by the Dayang shipyard in 2011. She was delivered into charter service in mid October 2011. Her disponent owners ("Owners") – Western Bulk Shipowning III A/S—seek to have continued a worldwide freezing injunction granted ex parte by Popplewell J on 10 April 2012 against OceanTask Corp. ("OceanTask"), the second defendants, and SeaTask Corp. ("SeaTask"), the third defendants, who were sub and sub-sub charterers of the vessel from Owners—together, "the Respondents". The Respondents are Marshall Island corporations with "branch offices" at an address in Athens. They now apply to discharge the injunction on the ground that the Court has no substantive jurisdiction against SeaTask and in any event that there is no risk of dissipation in respect of either Respondent. The charterers of the vessel from the owners were Carbofer Maritime Trading ApS ("CMT"), the first defendants.
The vessel was, at the material time, the subject of a long chartering chain, which was as follows:
Head Owners – Owners—CMT – OceanTask – SeaTask – Sinochart – Oceana
The CMT charter
On 7 June 2010, the Owners chartered the vessel to CMT on a time charter of 34 – 38 months duration from the date of her delivery (the CMT charter). The hire was US $ 17,700 per day. The charter was an amended NYPE charter. It provided for LMAA arbitration and English law (clause 17). It contained an amended NYPE lien clause 18 (see para 29 below); and clauses 37 and 41 (see para 26 below) providing for the deduction of bunkers from hire on redelivery.
For some reason – perhaps because of requirements by those financing the Western Bulk Group—it was subsequently decided that the registered ownership would vest in WA II L.P. ("the Head Owners") who on 30 September 2010 concluded a Charterparty with Owners for a period of 72 – 75 months at a daily rate of US $ 17,000. That charterparty contained the same clauses 17, 18 and, so far as material, 37 and 41.
The OceanTask charter
In November 2010, as appears from a fixture recap of 2 November 2010 relating to a fixture of the previous day, CMT sub-chartered the vessel to OceanTask on back-to-back terms save as to hire and speed & consumption ("the OceanTask charter"). That charter thus contains an English law and arbitration clause. The hire, at any rate initially, was $ 18,000 per day. OceanTask's case is that the hire was subsequently reduced to $ 15,725 per day as from December 2011 when OceanTask agreed to charter the "Heilan Rising".
SeaTask taking over OceanTask's operations
At this stage SeaTask were OceanTask's managers, pursuant to a Management Agreement dated 10 September 2008 which was to continue in force for as long as OceanTask continued to exist, subject to termination by either party on the occurrence of certain specified events, being in essence the insolvency of, or a material breach committed by, the other party. The Agreement (in respect of which SeaTask and OceanTask were advised by different firms of English lawyers) is subject to English law and LMAA arbitration. The two companies have separate shareholders. Whether the shareholders are linked to each other in any, and, if so, what way is not apparent.
According to the evidence of Mr Charalambos Katsamas, who is a director of both Respondents, in the summer of 2011 an understanding was reached between representatives of the shareholders of the two companies that at a mutually convenient time OceanTask would be taken over by SeaTask and the two operations would be amalgamated into one. This was because some of the interests behind OceanTask had lost their enthusiasm for shipping. Until the takeover, whose precise form was to be decided, SeaTask was to charter OceanTask's vessels at rates current at or shortly before the engagement. By this time OceanTask was very substantially in debt to SeaTask.
The "Aqua Atlantic" charter
According to the Respondents, the first vessel to be operated in this manner was the "Aqua Atlantic" which was chartered by OceanTask to SeaTask on 3 September 2011. OceanTask had chartered this vessel from Carbofer General Trading SA of Lugano, although all hire was paid to CMT as agreed by a C/P addendum. According to the Respondents, the charterparty between OceanTask and SeaTask in respect of the "Aqua Atlantic" incorporated a Greek law and arbitration clause (clause 17) and provided by clause 18 that Owners should not have any lien. It also provided by Clause 45 that "Charterers may offset hire against debt owed to Charterers by the Owners".
The SeaTask charter
On what is said to be 10 October 2011 OceanTask sub-sub-chartered "Western Moscow" to SeaTask Corp. ("the SeaTask charter") for 6 months +/- 30 days. (That it did so on some terms is something that the Owners are prepared to accept for the purpose of this application). There is a dispute over the terms of the SeaTask charter and, in particular whether it contained (as on the face of the document which is said to be that charter it does) the same clauses in relation to Greek law and arbitration, absence of lien, and set off as the "Aqua Atlantic". The hire is said to be $ 13,500, although the authenticity of that figure is, also, in dispute.
The SeaTask charter was signed by Mr Katsamas on behalf of SeaTask and by Mr Marios Gerardis on behalf of OceanTask.
The Sinochart charter
On 12 October 2011 SeaTask acting (as it claims and as for the purposes of the present application Owners are prepared to accept) as principal, sub-sub-sub-chartered the vessel to a company called China National Chartering Co. Ltd ("Sinochart"), for a time charter trip, on terms incorporating terms materially the same as the CMT charter (the Sinochart charter). The hire payable by Sinochart is $ 14,825. The charter period was about 4 to about 6 months, "about" meaning +/- 15 days.
The Oceana charter
Sinochart in turn further sub chartered the vessel to Oceana Shipping AG ("Oceana") either for a voyage or a short period. Sinochart and Oceana are not parties to these proceedings.
The vessel was delivered as a newbuilding into service under the CMT charter and the OceanTask charter direct from the yard on 14 October 2011. She was delivered into service under the Sinochart charter on the following day.
On 8 February 2012, Owners terminated the CMT charter and withdrew the vessel from the charter service, on the grounds of CMT's repudiation of that charter and non-payment of hire. CMT appears to have accepted what it regarded as OceanTask's repudiation of the OceanTask charter (on account of non-payment of hire) the previous day. OceanTask claim that the repudiation was that of CMT. Owners now have outstanding claims against CMT for unpaid hire, disbursements and damages for repudiation. The total amount of those claims exceeds $ 6 million. The major part of that relates to the claim for repudiation.
As is apparent from the above both the CMT and the OceanTask charters contain a term giving Owners a lien over all sub-hire in respect of any amounts due under the CMT charter.
Owners have exercised their lien under the CMT charter, by giving notice to CMT's sub-charterer, OceanTask. Owners claim to be entitled, either at law or in equity, to pursue CMT's claims for unpaid hire against OceanTask under the OceanTask charter. According to CMT, the amount of that claim is around $ 380,000. OceanTask say that nothing is due.
In addition, by exercising that lien, Owners claim that they have acquired CMT's equivalent lien under the OceanTask charter. Owners have exercised that second lien, by giving notice to SeaTask. Owners claim to be entitled, either at law or in equity, to pursue OceanTask's claim (if any) for unpaid hire against SeaTask under the SeaTask charter. SeaTask say that nothing is due under the SeaTask charter. Owners contend that it is to be inferred that around $ 380,000 is likely to be outstanding.
By this route Owners say that they have good arguable claims on the merits against both OceanTask and SeaTask; and they say that there is a real risk that OceanTask and SeaTask will dissipate their assets so as to avoid paying them unless restrained by injunction.
The injunctions were obtained under section 44 of the Arbitration Act 1996 and section 37(1) of the Senior Courts Act 1981 on the footing that the OceanTask charter contained an English law and London arbitration clause, and that it was to be inferred that the (true) SeaTask charter contained one as well.
OceanTask and SeaTask now apply to discharge the freezing injunction or to resist its continuance. They have produced what they say is the SeaTask charter. As I have said, the terms of that document differ from those of the OceanTask charter in that:
a) The law and arbitration clause (clause 17) provides for Greek, as opposed to English, law and arbitration;
b) The lien clause (clause 18) has been changed to a clause providing that there shall be "no lien";
c) The hire payment clause (clause 37) expressly permits...
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